UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): July 21, 1999
XOMA LTD.
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(Exact name of registrant as specified in its charter)
BERMUDA
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(State or other jurisdiction of incorporation)
0-14710 94-2756657
(Commission File Number) (IRS Employer Identification No.)
2910 Seventh Street, Berkeley, California 94710
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (510) 644-1170
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On July 22, 1999, XOMA Ltd. issued the announcement attached hereto as
Exhibit 1, which is incorporated herein by reference, that it had completed a
private placement of 3,024,086 common shares for net proceeds of $16,519,000.
The Company entered into a subscription agreement with the investors, a copy of
which is attached hereto as Exhibit 2 and incorporated herein by reference.
Under the terms of a registration rights agreement, the Company granted the
investors registration rights for the common shares issued to them, a copy of
which is attached hereto as Exhibit 3 and incorporated herein by reference. The
Company also issued warrants to purchase an aggregate of 150,000 common shares
to Sutro & Co. Incorporated and Arnhold & S. Bleichroeder, Inc., financial
advisors to the Company in the July 1999 private placement, and granted
registration rights for the warrants issued to them pursuant to a registration
rights agreement. Copies of the warrant and related registration rights
agreement are attached hereto as Exhibit 4 and Exhibit 5, respectively, and
incorporated herein by reference.
Item 7. Exhibits
1. Press Release dated July 22, 1999.
2. Form of Subscription Agreement dated as of July 21, 1999 by and between
XOMA Ltd. and the purchasers of Common Shares in the July 1999 private
placement
3. Form of Registration Rights Agreement dated as of July 21, 1999 by and
between XOMA Ltd. and the purchasers of Common Shares in the July 1999
private placement
4. Form of Common Share Purchase Warrant
5. Form of Registration Rights Agreement dated as of July 21, 1999 by and
between XOMA Ltd. and the placement agents in the July 1999 private
placement
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 23, 1999 XOMA LTD.
By: /s/ Christopher J. Margolin
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Christopher J. Margolin
Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
Number Description
1. Press Release dated July 22, 1999
2. Form of Subscription Agreement dated as of July 21, 1999 by and between
XOMA Ltd. and the purchasers of Common Shares in the July 1999 private
placement
3. Form of Registration Rights Agreement dated as of July 21, 1999 by and
between XOMA Ltd. and the purchasers of Common Shares in the July 1999
private placement
4. Form of Common Share Purchase Warrant
5. Form of Registration Rights Agreement dated as of July 21, 1999 by and
between XOMA Ltd. and the placement agents in the July 1999 private
placement
Exhibit 1
XOMA CONTACTS: Ellen M. Martin
510-644-1170 or 800-BIO XOMA
Thomson IR: Juliane Snowden
212-510-9286 or Tariq Jawad
212-510-9346 for a copy of
recent releases call: Fax
News on Demand 1-800-901-7788
or visit XOMA @ www.xoma.com
XOMA ANNOUNCES $17.4 MILLION COMMON SHARE FINANCING
Berkeley, CA - July 22, 1999 - XOMA Ltd. (Nasdaq: XOMA) today announced it has
sold 3.0 million common shares in a private financing for gross proceeds of
$17.4 million. Sutro & Company and Arnhold & S. Bleichroeder served as placement
agents for this transaction.
"Our policy has been to maintain a cash level that will fund our operations for
roughly one year," said Peter B. Davis, XOMA's Chief Financial Officer. "Our
June 30 cash balance was approximately $20 million. This financing brings us to
a more appropriate level in advance of unblinding the data from our recently
completed Phase III trial testing NEUPREX(R) in meningococcemia patients. We are
very pleased to complete a straight common share transaction, with no future
price adjustments or additional warrants issued to the investors."
Financing proceeds will be used primarily to fund continued development of
products from XOMA's BPI (bactericidal/permeability-increasing protein) drug
development platform. Besides the recently completed Phase III trial in
meningococcemia patients, the Company's lead BPI-derived product, NEUPREX(R), is
also being tested in a Phase III trial in patients suffering from hemorrhage due
to trauma. XOMA is currently reviewing additional potential indications for
NEUPREX(R). Other BPI-derived compounds are in earlier stages of development.
In addition to its BPI platform, XOMA is collaborating with Genentech on the
hu1124 (anti-CD11a) humanized monoclonal antibody product. The two companies
anticipate starting Phase III trials in patients with moderate to severe
psoriasis later this year.
XOMA Ltd. develops and manufactures biopharmaceuticals at facilities
located in Berkeley and Santa Monica, California. The Company's medical targets
include bacterial and fungal infections, infectious complications (such as those
that may follow trauma or surgery), immunologic and inflammatory disorders.
XOMA's primary drug development plat-
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form is the BPI molecule, a human protein with multiple anti-infective
properties that is part of the body's defense system against microbial
infection.
Statements made in this press release related to the timing of clinical trials,
release of data and other aspects of product development, or that otherwise
relate to future periods, are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. These statements are based on assumptions which may not
prove accurate. Actual results could differ materially from those anticipated
due to certain risks inherent in the biotechnology industry and for companies
engaged in the development of new products in a regulated market. These risks,
including those related to the timing or results of pending or future clinical
trials, changes in the status of the Company's collaborative relationships,
uncertainties regarding the legal standards applicable to biotechnology patents,
and actions by the U.S. Food and Drug Administration or the U.S. Patent and
Trademark Office, are discussed in the Company's most recent annual report on
Form 10-K and in other SEC filings. Consider such risks carefully in evaluating
XOMA's prospects.
# # #
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.
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"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
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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.
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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-
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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,
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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,
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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
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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.
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(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
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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.
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<PAGE>
(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-
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
with any such press release or other public disclosure prior to its release and
shall be provided with a copy thereof).
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<PAGE>
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:
---------------------------------------
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Exhibit 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July 21,
1999, by and among XOMA Ltd., a Bermuda company (the "Company"), and the
investors listed on Schedule A hereto (each an "Investor" and collectively, the
"Investors").
WHEREAS:
A. In connection with the Subscription Agreement between the parties hereto
effective as of even date herewith (the "Subscription Agreement"), the Company
has agreed, upon the terms and subject to the conditions contained therein, to
issue and sell to the Investors an aggregate of three million, twenty-four
thousand and eighty-six (3,024,086) common shares (the "Purchased Shares") of
the Company, par value $.0005 per share (the "Common Shares");
B. To induce the Investors to execute and deliver the Subscription
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute and rules (collectively, the
"Securities Act"), and applicable state securities laws; and
C. Pursuant to the provisions of Section 2(d) of this Agreement, the
Company may from time to time be required to issue additional shares to the
Investors (the "Additional Shares").
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 Company and the Investors
hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall have the following
meanings:
(i) "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and pursuant to Rule 415 under the
Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the
<PAGE>
declaration or ordering of effectiveness of the Registration Statement by
the United States Securities and Exchange Commission (the "SEC").
(ii) "Registrable Securities" means (i) the Purchased Shares, (ii) the
Additional Shares, if any, and (iii) Common Shares issued prior to the
effectiveness of the Registration Statement covering such shares as a
dividend or other distribution with respect to, in exchange for or in
replacement of, the Purchased Shares; provided, however, that any Purchased
Shares sold pursuant to an effective registration statement or pursuant to
Rule 144 under the Securities Act shall cease to be Registrable Securities.
(iii) "Registration Statement" means a registration statement of the
Company under the Securities Act, including any amendment thereto.
(b) Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Subscription Agreement.
2. Registration.
(a) Mandatory Registration. The Company shall prepare, and, on or prior to
the date which is thirty (30) days after the Closing Date (as defined in the
Subscription Agreement), file with the SEC a Registration Statement on Form S-3
registering the resale of the Registrable Securities.
(b) Effectiveness. The Company shall use its reasonable best efforts to
obtain effectiveness of the Registration Statement within one-hundred twenty
(120) days after the filing of the Registration Statement (the end of such
period, the "Effectiveness Date").
(c) No Underwriting. The registration of any Registrable Securities
provided for in this Section 2 shall not be underwritten.
(d) Additional Shares. If the Registration Statement is not declared
effective prior to or on the Effectiveness Date, the Company shall pay to each
Investor, in cash or Additional Shares (at the Company's option), an amount
equal to 1% of the product of (i) the number of Purchased Shares held by such
Investor, multiplied by (ii) the Purchase Price (as defined in the Subscription
Agreement), for each 15 day period subsequent to the Effectiveness Date during
which the Registration Statement is not effective. Any Additional Shares so
issued will be valued based on the Purchase Price. Such payment shall be made as
soon as practicable after each such 15 day period.
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<PAGE>
(e) Eligibility for Registration Statement Forms. The Company meets the
requirements for the use of Form S-3 for registration of the Registrable
Securities for resale by the Investors. The Company shall file all reports
required to be filed by the Company with the SEC in a timely manner so as to
maintain such eligibility for the use of Form S-3.
3. Obligations of the Company.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
(a) Once declared effective, the Company shall use its reasonable best
efforts to keep the Registration Statement effective pursuant to Rule 415 at all
times (subject to Section 3(e)) until such date as is the earlier of (i) the
date on which all of the Registrable Securities have been sold and (ii) the date
on which all of the Registrable Securities may be immediately sold without
restriction (including without limitation as to volume by each holder thereof)
without registration under the Securities Act (the "Registration Period").
(b) The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by the
Registration Statement .
(c) The Company shall furnish to each Investor such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act and such other documents as such Investor may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Investor.
(d) The Company shall use reasonable best efforts to register and qualify
the Registrable Securities covered by the Registration Statement under such
other securities or "blue sky" laws of such jurisdictions in the United States
as the Investor may reasonably request and maintain such registrations and
qualifications in effect at all times during the Registration Period; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to (i) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), (ii)
subject itself to general taxation in any such jurisdiction, (iii) file a
general consent to service of process in any such jurisdiction, (iv) provide any
undertakings that cause the Company undue expense or burden, or (v) make any
change in its charter or bylaws.
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<PAGE>
(e) In the event that, in the reasonable judgment of the Company, it is
advisable to suspend use of the prospectus relating to the Registration
Statement for a discrete period of time (a "Deferral Period") due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a notice in
writing, to each Investor, to the effect of the foregoing (but in no event shall
the Company be obligated to disclose to the Investors the facts and
circumstances giving rise to the foregoing) and, upon receipt of such notice,
each Investor agrees not to dispose of any Registrable Securities covered by the
Registration Statement (other than in transactions exempt from the registration
requirements under the Securities Act) until the Investors are advised in
writing by the Company that use of the prospectus may be resumed; provided,
however, that no Deferral Period shall be more than thirty (30) consecutive
days; provided, further, that the aggregate number of days in any such Deferral
Periods shall be no more than sixty (60) in any 12-month period.
4. Obligations of the Investors.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that each of the Investors shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be required to effect the registration of such
Registrable Securities, and shall execute such documents in connection with such
registration, as the Company may reasonably request.
(b) Each Investor, by acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of the Registration Statement hereunder, unless
such Investor has notified the Company in writing of the Investor's election to
exclude the Registrable Securities from the Registration Statement.
(c) For any offer or sale of any of the Registrable Securities under the
Registration Statement by the Investor in a transaction that is not exempt under
the Securities Act, the Investor, in addition to complying with any other
federal securities laws, shall deliver a copy of the final prospectus (together
with any amendment of or supplement to such prospectus) of the Company covering
the Registrable Securities, in the form furnished to the Investor by the
Company, to the purchaser of any of the Registrable Securities on or before the
settlement date for the purchase of such Registrable Securities.
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<PAGE>
(d) Upon the receipt by an Investor of any notice from the Company of (1)
the existence of any fact or the happening of any event as a result of which the
prospectus included in the Registration Statement contains an untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (2) the issuance by the SEC of any stop order or
injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose, or
the taking of any similar action by the securities regulators of any state or
other jurisdiction, or (3) the request by the SEC or any other federal or state
governmental agency for amendments or supplements to the Registration Statement
or related prospectus or for additional information related thereto, such
Investor shall forthwith discontinue disposition of its Registrable Securities
covered by the Registration Statement or related prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until receipt of the supplemented or amended prospectus or until such Investor
is advised in writing by the Company that the use of the applicable prospectus
may be resumed, and, if so directed by the Company, such Investor shall deliver
to the Company or destroy (and deliver to the Company a certificate of
destruction) all copies in the possession of such Investor, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In such a case, subject to Section 3(e), the Company shall as promptly
as reasonably practicable (i) prepare an amendment to correct or update the
prospectus, (ii) use its reasonable best efforts to remove the impediments
referred to in subclause (2) above, (iii) comply with the requests referred to
in subclause (3) above and (iv) send each Investor an updated prospectus and
advise each Investor in writing that the Investors may continue disposition of
their Registrable Securities registered by the Registration Statement.
5. Expenses.
All reasonable expenses incurred by the Company in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualification fees,
printers and accounting fees and the fees and disbursements of counsel for the
Company shall be borne by the Company. Each Investor shall be responsible for
any stock transfer taxes that may be payable by such Investor, and all brokerage
commissions relating to Registrable Securities. The Company shall not be
responsible for the fees and disbursements of counsel for the Investor except as
set forth in the Subscription Agreement.
6. Indemnification.
In the event any Registrable Securities are included in the Registration
Statement under this Agreement:
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<PAGE>
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Investor, its directors and officers and each person who controls
such Investor within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), if any (each, an
"Indemnified Person"), against any losses, claims, damages or liabilities to
third parties (collectively, "Claims") to which any of them may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such Claims arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact in the Registration Statement or
the omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of the Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the provisions set forth in Section
6(c), the Company shall reimburse the Indemnified Person for any legal fees or
other expenses reasonably incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (ii) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld; and (iii) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified Person
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, such corrected prospectus was timely made
available by the Company pursuant to Section 3(c) hereof, and the Indemnified
Person was promptly advised in writing not to use the uncorrected prospectus
prior to the use giving rise to a Violation and such Indemnified Person,
notwithstanding such advice, used such uncorrected prospectus.
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<PAGE>
(b) In connection with the Registration Statement, each Investor, severally
and not jointly, agrees to indemnify and hold harmless, to the same extent and
in the same manner set forth in Section 6(a), the Company, each of its officers
and directors and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act (each, an "Indemnified
Party"), against any Claim to which any of them may become subject, under the
Securities Act, the Exchange Act or other federal or state securities law,
insofar as such Claim arises out of or is based upon any Violation by such
Investor, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
the Registration Statement; and subject to Section 6(c) such Investor will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided, further, however, that such Investor shall be
liable under this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the gross proceeds to such Investor as a result
of the sale of Registrable Securities pursuant to the Registration Statement
containing the Violation. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if such Investor timely notified the Company in writing of the
untrue statement or omission of material fact contained in the preliminary
prospectus and the Company failed to make such correction to the prospectus.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party of
notice of the commencement of any action (including any governmental action),
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be (which consent shall not be
unreasonably withheld); provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the Indemnified Person or Indemnified
Party, as applicable, the representation by such counsel of the Indemnified
Person or Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified Person
or Indemnified Party and any other party represented by such counsel in such
proceeding. The indem-
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<PAGE>
nifying party shall pay for only one separate legal counsel for the Indemnified
Persons or the Indemnified Parties, as applicable (together with appropriate
local counsel), and such legal counsel shall be selected by a majority of the
Investors, if the Investors are entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as applicable.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6.
7. General Provisions.
(a) Registered Holder. A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Notices. All notices which may be required pursuant to this Agreement
(i) shall be in writing, (ii) shall be addressed as follows:
If to the Company:
XOMA Ltd.
2910 Seventh Street
Berkeley, California 94710
Attn: Legal Department
Facsimile: (510) 649-7571
With a copy to:
Cahill Cordon & Reindel
80 Pine Street
New York, New York 10005
Attn: Geoffrey E. Liebmann, Esq.
Facsimile: (212) 269-5420
If to the Investors, the addresses listed on Schedule A hereto
(or to such other person or address as either party may so designate from time
to time), (iii) shall be mailed, postage prepaid, by registered mail or
certified mail, return receipt re-
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<PAGE>
quested, sent by nationally-recognized overnight carrier or transmitted by
courier for hand delivery and (iv) shall be deemed to have been given on the
date of receipt. Any such notice may be sent by facsimile transmission but shall
in such case be subsequently confirmed by a writing mailed, sent or transmitted
as set forth above and shall be deemed to have been given on the date of receipt
of such facsimile transmission subject to receipt of such confirmation.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(d) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties regarding the subject matter hereof and thereof,
and there are no prior written or oral promises or representations not
incorporated herein or therein. No amendment or modification of the terms of
this Agreement shall be binding on either party unless reduced to writing and
signed by an authorized officer of the party to be bound.
(e) Binding Effect; Assignability. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement shall not be assignable by either party,
either in whole or in part, except as provided in the next sentence. The rights
to have the Company register Shares pursuant to this Agreement and rights to
Additional Shares, if any, pursuant to Section 2(d) of this Agreement shall be
automatically assigned by an Investor to any Permitted Transferee of all or any
portion of such securities only if: (i) the Investor agrees in writing with the
Permitted Transferee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (A) the name and address of such Permitted
Transferee and (B) the securities with respect to which such registration rights
are being transferred or assigned, and (iii) the Permitted Transferee agrees in
writing with the Company to be bound by all of the provisions contained herein.
(f) Waiver. The waiver by a party hereto of any breach of or default under
any of the provisions of this Agreement or the failure of a party to enforce any
of the provisions of this Agreement or to exercise any right hereunder shall not
be construed as a waiver of any other breach or default or as a waiver of any
such rights or provisions hereunder.
(g) Severability. If any part of this Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective only to the
extent of such invalidity or unenforceability, without in any way affecting the
remaining parts of this
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<PAGE>
Agreement. In addition, the part that is ineffective shall be deemed reformed in
such a manner as to as nearly approximate the intent of the parties as possible.
(h) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Investors have caused this
Agreement to be duly executed as of the date first above written.
XOMA LTD.
By:
----------------------------------------
Name: Peter B. Davis
Title: Vice President, Finance and
Chief Financial Officer
[ ]
By:
----------------------------------------
Name:
Title:
-11-
Exhibit 4
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.
Right to Purchase 75,000 Common Shares of
XOMA Ltd.
XOMA LTD.
Common Share Purchase Warrant
No. W-
XOMA LTD., a Bermuda company (the "Company"), hereby certifies that, for
value received, ___________ or registered assigns (the "Holder"), is entitled,
subject to the terms set forth below, to purchase from the Company at any time
or from time to time after the date hereof, and before 5:00 p.m., New York City
time, on the Expiration Date (as hereinafter defined), 75,000 fully paid and
nonassessable Common Shares (as hereinafter defined) at a purchase price per
share equal to the Purchase Price (as hereinafter defined). The number of such
Common Shares and the Purchase Price are subject to adjustment as provided in
this Warrant.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
"Common Shares" means and includes the Company's Common Shares, $.0005
par value per share, as authorized on the date hereof, and any other
securities into which or for which the Common Shares may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger,
amalgamation, sale of assets or otherwise.
"Company" shall include XOMA Ltd. and any legal entity that shall
succeed to or assume the obligation of XOMA Ltd. hereunder in accordance
with the terms hereof.
<PAGE>
"Expiration Date" means July 21, 2004.
"Issuance Date" shall mean the first date of original issuance of this
Warrant.
"Other Securities" refers to any shares (other than Common Shares) and
other securities of the Company or any other person (corporate or
otherwise) which the Holder at any time shall be entitled to receive, or
shall have received, on the exercise of this Warrant, in lieu of or in
addition to Common Shares, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Shares or
Other Securities pursuant to Section 4.
"Permitted Transferee" means any person (1) who is an "accredited
investor" as defined in Regulation D under the Securities Act and who is
designated a non-resident of Bermuda for Bermuda Exchange Control purposes
(2) and who is either (A) an affiliate of the owner of this Warrant or (B)
a person as to whom the Company shall have consented to such transfer, such
consent not to be unreasonably withheld (it being understood that a
proposed transfer by the 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).
"Purchase Price" shall mean $5.75 per share, subject to adjustment as
provided in this Warrant.
"Trading Day" means a day on which the principal securities market for
the Common Shares is open for general trading of securities.
1. Exercise of Warrant. This Warrant may be exercised by the Holder hereof
in full or in part at any time or from time to time during the exercise period
specified in the first paragraph hereof until the Expiration Date by surrender
of this Warrant and the subscription form annexed hereto (duly executed by the
Holder), to the Company's transfer agent and registrar for the Common Shares,
and by making payment, in cash or by certified or official bank check payable to
the order of the Company, in the amount obtained by multiplying (a) the number
of Common Shares designated by the Holder in the subscription form by (b) the
Purchase Price then in effect. On any partial exercise the Company will
forthwith issue and deliver to or upon the order of the Holder hereof a new
Warrant or Warrants of like tenor, in the name of the Holder hereof or as the
Holder (upon payment by the Holder of any applicable transfer taxes) may
request, providing in the aggregate on the face or faces thereof for the
purchase of the number of Common Shares for which such Warrant or Warrants may
still be exercised.
-2-
<PAGE>
2. Delivery of Share Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, and in any event within three
Trading Days thereafter, the Company at its expense (including the payment by it
of any applicable issue or stamp taxes) will cause to be issued in the name of
and delivered to the Holder hereof, or as the Holder (upon payment by the Holder
of any applicable transfer taxes) may direct, the number of fully paid and
nonassessable Common Shares (or Other Securities) to which the Holder shall be
entitled on such exercise, in such denominations as may be requested by the
Holder and a certificate or certificates therefor, plus, in lieu of any
fractional share to which the Holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current fair market value of one full
share, together with any other shares or other securities any property
(including cash, where applicable) to which the Holder is entitled upon such
exercise pursuant to Section 1 or otherwise. Upon exercise of this Warrant as
provided herein, the Company's obligation to issue and deliver the certificates
for Common Shares shall be absolute and unconditional, irrespective of the
absence of any action by the Holder to enforce the same, any waiver or consent
with respect to any provision thereof, the recovery of any judgment against any
person or any action to enforce the same, any failure or delay in the
enforcement of any other obligation of the Company to the Holder, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other person of any obligation to the Company, and
irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with such exercise. If the
Company fails to issue and deliver the certificates for the Common Shares to the
Holder pursuant to the first sentence of this paragraph as and when required to
do so, in addition to any other liabilities the Company may have hereunder and
under applicable law, the Company shall pay or reimburse the Holder on demand
for all reasonable out-of-pocket expenses including, without limitation, fees
and expenses of legal counsel incurred by the Holder as a result of such
failure.
As used herein, current fair market value of Common Shares as of a
specified date shall mean with respect to each Common Share the closing bid
price of the Common Shares on the principal securities market on which the
Common Shares may at the time be listed or, if on such day the Common Shares are
not so listed, the representative bid prices quoted in the Nasdaq System as of
4:00 p.m., New York City time, or, if on such day the Common Shares are not
quoted in the Nasdaq System, the average of the highest bid and lowest asked
price on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar successor organization,
in each such case averaged over a period of five consecutive Trading Days
consisting of the day as of which the current fair market value of a Common
Share is being determined (or if such day is not a Trading Day, the Trading Day
next preceding such day) and the four consecutive Trading Days prior to such
day. If on the date for which current fair market value is to be determined the
Common Shares are not listed on any securities exchange or quoted in the Nasdaq
-3-
<PAGE>
System or the over-the-counter market, the current fair market value of Common
Shares shall be the highest price per share which the Company could then obtain
from a willing buyer (not a current employee or director) for Common Shares sold
by the Company, from authorized but unissued shares, as determined in good faith
by the Board of Directors of the Company, unless prior to such date the Company
has become subject to a merger, acquisition or other consolidation pursuant to
which the Company is not the surviving party, in which case the current fair
market value of the Common Shares shall be deemed to be the value received by
the holders of the Company's Common Shares for each share thereof pursuant to
the Company's acquisition.
3. Adjustment for Dividends in Other Shares, Property, etc.;
Reclassification, etc. In case at any time or from time to time, all the holders
of Common Shares (or Other Securities) shall have received, or (on or after the
record date fixed for the determination of shareholders eligible to receive)
shall have become entitled to receive, without payment therefor,
(a) other or additional shares or other securities or property (other than
cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings or
earned surplus of the Company), or
(c) other or additional shares or other securities or property (including
cash) by way of spin-off, split-up, reclassification, recapitalization,
combination of shares or similar corporate rearrangement,
other than additional Common Shares (or Other Securities) issued as a share
dividend or in a share-split (adjustments in respect of which are provided for
in Section 5), then and in each such case the Holder, on the exercise hereof as
provided in Section 1, shall be entitled to receive the amount of shares and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) which the Holder would hold on the
date of such exercise if on the date thereof the Holder had been the holder of
record of the number of Common Shares called for on the face of this Warrant and
had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and all such other or additional shares
and other securities and property (including cash in the case referred to in
subdivisions (b) and (c) of this Section 3) receivable by the Holder as
aforesaid during such period, giving effect to all adjustments called for during
such period by Section 4.
4. Exercise upon Reorganization, Consolidation, Merger, etc. In case at any
time or from time to time, the Company shall (a) effect a reorganization, (b)
-4-
<PAGE>
consolidate or amalgamate with or merge into any other person, or (c) transfer
all or substantially all of its properties or assets to any other person under
any plan or arrangement contemplating the dissolution of the Company, then, in
each such case, as a condition of such reorganization, consolidation,
amalgamation, merger, sale or conveyance, the Company shall give at least 20
days notice to the Holder of such pending transaction whereby the Holder shall
have the right to exercise this Warrant prior to any such reorganization,
consolidation, amalgamation, merger, sale or conveyance. Any exercise of this
Warrant pursuant to notice under this Section shall be conditioned upon the
closing of such reorganization, consolidation, amalgamation, merger, sale or
conveyance which is the subject of the notice and the exercise of this Warrant
shall not be deemed to have occurred until immediately prior to the closing of
such transaction.
5. Adjustment for Extraordinary Events. In the event that the Company shall
(i) issue additional Common Shares as a dividend or other distribution on
outstanding Common Shares, (ii) subdivide or reclassify its outstanding Common
Shares, or (iii) combine its outstanding Common Shares into a smaller number of
Common Shares, then, in each such event, the Purchase Price shall,
simultaneously with the happening of such event, be adjusted by multiplying the
Purchase Price in effect immediately prior to such event by a fraction, the
numerator of which shall be the number of Common Shares outstanding immediately
prior to such event and the denominator of which shall be the number of Common
Shares outstanding immediately after such event, and the product so obtained
shall thereafter be the Purchase Price then in effect. The Purchase Price, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described in this Section 5. The Holder shall
thereafter, on the exercise hereof as provided in Section 1, be entitled to
receive that number of Common Shares determined by multiplying the number of
Common Shares which would be issuable on such exercise immediately prior to such
issuance by a fraction of which (i) the numerator is the Purchase Price in
effect immediately prior to such issuance and (ii) the denominator is the
Purchase Price in effect on the date of such exercise.
6. Further Assurances. The Company will take all action that may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares, free from all taxes, liens and charges with
respect to the issue thereof, on the exercise of all or any portion of this
Warrant from time to time outstanding.
7. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend on, or any right to subscribe for,
purchase or otherwise acquire any shares of any class or any other
securities or property, or to receive any other right, or
-5-
<PAGE>
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the share capital of the Company or any transfer of all
or substantially all of the assets of the Company to or consolidation,
amalgamation or merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder, at least ten days prior to such record date, a notice specifying (i) the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, amalgamation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Shares (or
Other Securities) shall be entitled to exchange their Common Shares (or Other
Securities) for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, amalgamation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any shares or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall also state that the action in
question or the record date is subject to the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
or a favorable vote of shareholders if either is required. Such notice shall be
mailed at least ten days prior to the date specified in such notice on which any
such action is to be taken or the record date, whichever is earlier.
8. Reservation of Shares, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available out of its authorized but
unissued share capital, solely for issuance and delivery on the exercise of this
Warrant, a sufficient number of Common Shares (or Other Securities) to effect
the full exercise of this Warrant and the exercise, conversion or exchange of
any other warrant or security of the Company exercisable for, convertible into,
exchangeable for or otherwise entitling the holder to acquire Common Shares (or
Other Securities), and if at any time the number of authorized but unissued
Common Shares (or Other Securities) shall not be sufficient to effect such
exercise, conversion or exchange, the Company shall take such action as may be
necessary to increase its authorized but unissued Common Shares (or Other
Securities) to such number as shall be sufficient for such purposes.
9. Transfer of Warrant. This Warrant may be transferred, in whole or in
part, only to Permitted Transferees. This Warrant shall inure to the benefit of
the suc-
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<PAGE>
cessors to and permitted assigns of the Holder. This Warrant and all rights
hereunder, in whole or in part, are registrable at the office of the Company
referred to in Section 10 by the Holder hereof in person or by his duly
authorized attorney, upon surrender of this Warrant properly endorsed.
10. Register of Warrants. The Company shall maintain, at the principal
office of the Company (or such other office as it may designate by notice to the
Holder hereof), a register in which the Company shall record the name and
address of the person in whose name this Warrant has been issued, as well as the
name and address of each successor and prior owner of such Warrant. The Company
shall be entitled to treat the person in whose name this Warrant is so
registered as the sole and absolute owner of this Warrant for all purposes.
11. Exchange of Warrant. This Warrant is exchangeable, upon the surrender
hereof by the Holder hereof at the office or agency of the Company referred to
in Section 10, for one or more new Warrants of like tenor representing in the
aggregate the right to subscribe for and purchase the number of Common Shares
which may be subscribed for and purchased hereunder, each of such new Warrants
to represent the right to subscribe for and purchase such number of shares as
shall be designated by said Holder hereof at the time of such surrender.
12. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
13. Warrant Agent. On or prior to the issuance of this Warrant, the Company
will instruct ChaseMellon Shareholder Services, L.L.C., as Transfer Agent and
Registrar (the "Transfer Agent"), to act as the exercise agent for purposes of
issuing Common Shares (or Other Securities) on the exercise of this Warrant
pursuant to Section 1, exchanging this Warrant pursuant to Section 11 and
replacing this Warrant pursuant to Section 12, or any of the foregoing, and
thereafter any such exchange or replacement, as the case may be, shall be made
at such office by such agent.
14. Remedies. The Company stipulates that the remedies at law of the Holder
in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance
-7-
<PAGE>
of any agreement contained herein or by an injunction against a violation of any
of the terms hereof or otherwise.
15. No Rights or Liabilities as a Shareholder. This Warrant shall not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the Holder hereof to purchase Common Shares, and no mere enumeration
herein of the rights or privileges of the Holder hereof, shall give rise to any
liability of the Holder for the Purchase Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
16. Notices, etc. All notices and other communications from the Company to
the registered Holder shall be mailed by first class certified mail, postage
prepaid, at such address as may have been furnished to the Company in writing by
the Holder or at the address shown for the Holder on the register of Warrants
referred to in Section 10 and any such notices to the Company shall be mailed in
such manner to its principal office.
17. Transfer Restrictions. This Warrant may only be transferred as provided
in Section 9. In addition, by acceptance of this Warrant, the Holder represents
to the Company that this Warrant is being acquired for the Holder's own account
and for the purpose of investment and not with a view to, or for sale in
connection with, the distribution thereof, nor with any present intention of
distributing or selling this Warrant or the Common Shares issuable upon exercise
of the Warrant. The Holder acknowledges and agrees that this Warrant and the
Common Shares issuable upon exercise of this Warrant (if any) have not been (and
at the time of acquisition by the Holder, will not have been or will not be),
registered under the Securities Act or under the securities laws of any state,
in reliance upon certain exemptive provisions of such statutes. The Holder
further recognizes and acknowledges that because this Warrant and the Common
Shares issuable upon exercise of this Warrant (if any) are unregistered, they
may not be eligible for resale, and may only be resold in the future pursuant to
an effective registration statement under the Securities Act and any applicable
state securities laws, or pursuant to a valid exemption from such registration
requirements. Unless the Common Shares issuable upon exercise of this Warrant
have theretofore been registered for resale under the Securities Act, the
Company may require, as a condition to the issuance of Common Shares upon the
exercise of this Warrant, a confirmation as of the date of exercise of the
Holder's representations pursuant to this Section 17.
18. Legend. Unless theretofore registered for resale under the Securities
Act, each certificate for shares issued upon exercise of this Warrant shall bear
the following legend:
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<PAGE>
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.
Once the Registration Statement required to be filed by the Company
pursuant to Section 2 of the Registration Rights Agreement, by and among the
Company, Sutro & Co., Incorporated and Arnhold & S. Bleichroeder, Inc., dated
the date hereof, has been declared effective, thereafter (i) upon the Holder's
request the Company will promptly (but in no event later than three Trading Days
after receipt of the Holder'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.
19. Miscellaneous. This Warrant and any terms hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of California. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed on
its behalf by one of its officers thereunto duly authorized.
Dated: July 21,1999 XOMA LTD.
By:
-----------------------------------
Title:
-----------------------------------
-10-
<PAGE>
FORM OF SUBSCRIPTION
XOMA LTD.
(To be signed only on exercise of Warrant)
TO: ChaseMellon Shareholder Services, L.L.C.,
as Exercise Agent
235 Montgomery Street, 23rd Floor
San Francisco, California 94104
1. The undersigned Holder of the attached original, executed Warrant hereby
elects to exercise its purchase right under such Warrant with respect to
______________ Common Shares, as defined in the Warrant, of XOMA Ltd., a Bermuda
company (the "Company").
2. The undersigned Holder agrees to pay the aggregate purchase price for
such Common Shares (the "Exercise Shares") (i) by lawful money of the United
States or the enclosed certified or official bank check payable in United States
dollars to the order of the Company in the amount of $___________, or (ii) by
wire transfer of United States funds to the account of the Company in the amount
of $____________, which transfer has been made before or simultaneously with the
delivery of this Form of Subscription pursuant to the instructions of the
Company;
3. Please issue a share certificate or certificates representing the
appropriate number of Common Shares in the name of the undersigned or in such
other names as is specified below:
Name:
----------------------------------
Address:
----------------------------------
Dated:
----------------------- --------------------------------------------
(Signature must conform to name of Holder as
specified on the face of the Warrant)
Name:
-----------------------------------
Address:
-----------------------------------
S-1
Exhibit 5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July 21,
1999, by and among XOMA Ltd., a Bermuda company (the "Company"), and Sutro & Co.
Incorporated and Arnhold & S. Bleichroeder, Inc. (together, the "Investors").
WHEREAS:
A. In connection with the Subscription Agreement between the parties hereto
effective as of even date herewith (the "Subscription Agreement"), the Company
has agreed, upon the terms and subject to the conditions contained therein, to
issue to each of the Investors common share purchase warrants (the "Warrants")
to purchase 75,000 common shares (the "Warrant Shares") of the Company, par
value $.0005 per share (the "Common Shares");
B. To induce the Investors to act as financial advisors to the Company, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute and rules (collectively, the "Securities Act"), and
applicable state securities laws; and
C. Pursuant to the provisions of Section 2(d) of this Agreement, the
Company may from time to time be required to issue additional shares to the
Investors (the "Additional Shares").
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 Company and the Investors
hereby agree as follows:
1. Definitions.
(a) As used in this Agreement, the following terms shall have the following
meanings:
(i) "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and pursuant to Rule 415 under the
Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of
effectiveness of the Registration Statement by the United States Securities
and Exchange Commission (the "SEC").
(ii) "Registrable Securities" means (i) the Warrant Shares and (ii)
the Additional Shares, if any, and (iii) Common Shares issued prior to the
effectiveness of
<PAGE>
the Registration Statement covering such shares as a dividend or other
distribution with respect to, in exchange for or in replacement of, the
Warrant Shares; provided, however, that any Warrant Shares sold pursuant to
an effective registration statement or pursuant to Rule 144 under the
Securities Act shall cease to be Registrable Securities.
(iii) "Registration Statement" means a registration statement of the
Company under the Securities Act, including any amendment thereto.
(b) Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Subscription Agreement.
2. Registration.
(a) Mandatory Registration. The Company shall prepare, and, on or prior to the
date which is thirty (30) days after the Closing Date (as defined in the
Subscription Agreement), file with the SEC a Registration Statement on Form S-3
registering the resale of the Registrable Securities.
(b) Effectiveness. The Company shall use its reasonable best efforts to
obtain effectiveness of the Registration Statement within one-hundred twenty
(120) days after the filing of the Registration Statement (the end of such
period, the "Effectiveness Date").
(c) No Underwriting. The registration of any Registrable Securities
provided for in this Section 2 shall not be underwritten.
(d) Additional Shares. If the Registration Statement is not declared
effective prior to or on the Effectiveness Date, the Company shall pay to each
Investor, in cash or Additional Shares (at the Company's option), an amount
equal to 1% of the product of (i) the number of Warrant Shares held by such
Investor, multiplied by (ii) the Purchase Price (as defined in the Subscription
Agreement), for each 15 day period subsequent to the Effectiveness Date during
which the Registration Statement is not effective. Any Additional Shares so
issued will be valued based on the Purchase Price. Such payment shall be made as
soon as practicable after each such 15 day period.
(e) Eligibility for Registration Statement Forms. The Company meets the
requirements for the use of Form S-3 for registration of the Registrable
Securities for resale by the Investors. The Company shall file all reports
required to be filed by the Company with the SEC in a timely manner so as to
maintain such eligibility for the use of Form S-3.
(f) Restrictive Legend.
The Buyers acknowledge and agree that until such time as the Warrant Shares
have been registered for resale under the 1933 Act as contemplated herein, the
certificates for the
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<PAGE>
Warrant 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 Warrant 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.
(i) Restrictive Legend.
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.
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.
3. Obligations of the Company.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
(a) Once declared effective, the Company shall use its reasonable best
efforts to keep the Registration Statement effective pursuant to Rule 415 at all
times (subject to
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Section 3(e)) until such date as is the earlier of (i) the date on which all of
the Registrable Securities have been sold and (ii) the date on which all of the
Registrable Securities may be immediately sold without restriction (including
without limitation as to volume by each holder thereof) without registration
under the Securities Act (the "Registration Period").
(b) The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by the
Registration Statement .
(c) The Company shall furnish to each Investor such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act and such other documents as such Investor may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Investor.
(d) The Company shall use reasonable best efforts to register and qualify
the Registrable Securities covered by the Registration Statement under such
other securities or "blue sky" laws of such jurisdictions in the United States
as the Investor may reasonably request and maintain such registrations and
qualifications in effect at all times during the Registration Period; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to (i) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), (ii)
subject itself to general taxation in any such jurisdiction, (iii) file a
general consent to service of process in any such jurisdiction, (iv) provide any
undertakings that cause the Company undue expense or burden, or (v) make any
change in its charter or bylaws.
(e) In the event that, in the reasonable judgment of the Company, it is
advisable to suspend use of the prospectus relating to the Registration
Statement for a discrete period of time (a "Deferral Period") due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a notice in
writing, to each Investor, to the effect of the foregoing (but in no event shall
the Company be obligated to disclose to the Investors the facts and
circumstances giving rise to the foregoing) and, upon receipt of such notice,
each Investor agrees not to dispose of any Registrable Securities covered by the
Registration Statement (other than in transactions exempt from the registration
requirements under the Securities Act) until the Investors are advised in
writing by the Company that use of the prospectus may be resumed; provided,
however, that no Deferral Period shall be more than thirty (30) consecutive
days; provided, further, that the aggregate number of days in any such Deferral
Periods shall be no more than sixty (60) in any 12-month period.
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4. Obligations of the Investors.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that each of the Investors shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be required to effect the registration of such
Registrable Securities, and shall execute such documents in connection with such
registration, as the Company may reasonably request.
(b) Each Investor, by acceptance of the Warrants, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of the Registration Statement hereunder, unless the
Investor has notified the Company in writing of the Investor's election to
exclude the Registrable Securities from the Registration Statement.
(c) For any offer or sale of any of the Registrable Securities under the
Registration Statement by the Investor in a transaction that is not exempt under
the Securities Act, the Investor, in addition to complying with any other
federal securities laws, shall deliver a copy of the final prospectus (together
with any amendment of or supplement to such prospectus) of the Company covering
the Registrable Securities, in the form furnished to the Investor by the
Company, to the purchaser of any of the Registrable Securities on or before the
settlement date for the purchase of such Registrable Securities.
(d) Upon the receipt by an Investor of any notice from the Company of (1)
the existence of any fact or the happening of any event as a result of which the
prospectus included in the Registration Statement contains an untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (2) the issuance by the SEC of any stop order or
injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose, or
the taking of any similar action by the securities regulators of any state or
other jurisdiction, or (3) the request by the SEC or any other federal or state
governmental agency for amendments or supplements to the Registration Statement
or related prospectus or for additional information related thereto, the
Investor shall forthwith discontinue disposition of its Registrable Securities
covered by the Registration Statement or related prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until receipt of the supplemented or amended prospectus or until such Investor
is advised in writing by the Company that the use of the applicable prospectus
may be resumed, and, if so directed by the Company, such Investor shall deliver
to the Company or destroy (and deliver to the Company a certificate of
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<PAGE>
destruction) all copies in the possession of such Investor, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In such a case, subject to Section 3(e), the Company shall as promptly
as reasonably practicable (i) prepare an amendment to correct or update the
prospectus, (ii) use its reasonable best efforts to remove the impediments
referred to in subclause (2) above, (iii) comply with the requests referred to
in subclause (3) above and (iv) send each Investor an updated prospectus and
advise each Investor in writing that the Investors may continue disposition of
their Registrable Securities registered by the Registration Statement.
5. Expenses.
All reasonable expenses incurred by the Company in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualification fees,
printers and accounting fees and the fees and disbursements of counsel for the
Company shall be borne by the Company. Each Investor shall be responsible for
any stock transfer taxes that may be payable by such Investor, and all brokerage
commissions relating to Registrable Securities. The Company shall not be
responsible for the fees and disbursements of counsel for the Investor except as
set forth in the Subscription Agreement.
6. Indemnification.
In the event any Registrable Securities are included in the Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Investor, its directors and officers and each person who controls
such Investor within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), if any (each, an
"Indemnified Person"), against any losses, claims, damages or liabilities to
third parties (collectively, "Claims") to which any of them may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such Claims arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact in the Registration Statement or
the omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of the Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any rule or
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regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the provisions set forth in Section
6(c), the Company shall reimburse the Indemnified Person for any legal fees or
other expenses reasonably incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by any Indemnified Person or underwriter for such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (ii) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld; and (iii) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified Person
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, such corrected prospectus was timely made
available by the Company pursuant to Section 3(c) hereof, and the Indemnified
Person was promptly advised in writing not to use the uncorrected prospectus
prior to the use giving rise to a Violation and such Indemnified Person,
notwithstanding such advice, used such uncorrected prospectus.
(b) In connection with the Registration Statement, each Investor, severally
and not jointly, agrees to indemnify and hold harmless, to the same extent and
in the same manner set forth in Section 6(a), the Company, each of its officers
and directors and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act (each, an "Indemnified
Party"), against any Claim to which any of them may become subject, under the
Securities Act, the Exchange Act or other federal or state securities law,
insofar as such Claim arises out of or is based upon any Violation by such
Investor, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
the Registration Statement; and subject to Section 6(c) such Investor will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided, further, however, that the Investor shall be
liable under this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the gross proceeds to the Investor as a result of
the sale of Registrable Securities pursuant to the Registration Statement
containing the Violation. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified
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<PAGE>
Party if such Investor timely notified the Company in writing of the untrue
statement or omission of material fact contained in the preliminary prospectus
and the Company failed to make such correction to the prospectus.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party of
notice of the commencement of any action (including any governmental action),
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be (which consent shall not be
unreasonably withheld); provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the Indemnified Person or Indemnified
Party, as applicable, the representation by such counsel of the Indemnified
Person or Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified Person
or Indemnified Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one separate legal counsel
for the Indemnified Persons or the Indemnified Parties, as applicable (together
with appropriate local counsel), and such legal counsel shall be selected by the
Investors, if the Investors are entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as applicable.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, shall relieve such
indemnifying party of liability to the Indemnified Person or Indemnified Party
under this Section 6 to the extent the indemnifying party's ability to defend
such action is prejudiced by such failure.
7. General Provisions.
(a) Registered Holder. A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Notices. All notices which may be required pursuant to this Agreement
(i) shall be in writing, (ii) shall be addressed as follows:
If to the Company:
XOMA Ltd.
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2910 Seventh Street
Berkeley, California 94710
Attn: Legal Department
Facsimile: (510) 649-7571
With a copy to:
Cahill Cordon & Reindel
80 Pine Street
New York, New York 10005
Attn: Geoffrey E. Liebmann, Esq.
Facsimile: (212) 269-5420
If to the Investors:
Sutro & Co. Incorporated
11150 Santa Monica Boulevard
Suite 1500
Los Angeles, CA 90025
Attn: Mark Tunney
Facsimile: (310) 477-6060
Arnhold & S. Bleichroeder, Inc.
1345 Avenue of the Americas
New York, New York 10105
Attn: Frederick Arnold
Facsimile: (212) 299-4410
With a copy to:
Paul, Hastings, Janofsky & Walker, LLP
345 California Street, 29th Floor
San Francisco, California 94114
Attn: Paul A. Reiner, Esq.
Facsimile: (415) 217-5333
(or to such other person or address as either party may so designate from time
to time), (iii) shall be mailed, postage prepaid, by registered mail or
certified mail, return receipt requested, sent by nationally-recognized
overnight carrier or transmitted by courier for hand delivery and (iv) shall be
deemed to have been given on the date of receipt. Any such notice may be sent by
facsimile transmission but shall in such case be subsequently confirmed by a
writing mailed, sent or
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transmitted as set forth above and shall be deemed to have been given on the
date of receipt of such facsimile transmission subject to receipt of such
confirmation.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(d) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties regarding the subject matter hereof and thereof,
and there are no prior written or oral promises or representations not
incorporated herein or therein. No amendment or modification of the terms of
this Agreement shall be binding on either party unless reduced to writing and
signed by an authorized officer of the party to be bound.
(e) Binding Effect; Assignability. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement shall not be assignable by either party,
either in whole or in part, except as provided in the next sentence. The rights
to have the Company register Shares pursuant to this Agreement and rights to
Additional Shares, if any, pursuant to Section 2(d) of this Agreement shall be
automatically assigned by an Investor to any Permitted Transferee of all or any
portion of such securities only if: (i) the Investor agrees in writing with the
Permitted Transferee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (A) the name and address of such Permitted
Transferee and (B) the securities with respect to which such registration rights
are being transferred or assigned, and (iii) the Permitted Transferee agrees in
writing with the Company to be bound by all of the provisions contained herein.
(f) Waiver. The waiver by a party hereto of any breach of or default under
any of the provisions of this Agreement or the failure of a party to enforce any
of the provisions of this Agreement or to exercise any right hereunder shall not
be construed as a waiver of any other breach or default or as a waiver of any
such rights or provisions hereunder.
(g) Severability. If any part of this Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective only to the
extent of such invalidity or unenforceability, without in any way affecting the
remaining parts of this Agreement. In addition, the part that is ineffective
shall be deemed reformed in such a manner as to as nearly approximate the intent
of the parties as possible.
(h) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably
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request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
(i) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the Company and the Investors have caused this
Agreement to be duly executed as of the date first above written.
XOMA LTD.
By:
-------------------------------------------
Name: Christopher J. Margolin
Title: Vice President, General Counsel
and Secretary
SUTRO & CO. INCORPORATED
By:
-------------------------------------------
Name:
Title:
ARNHOLD & S. BLEICHROEDER, INC.
By:
-------------------------------------------
Name:
Title:
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