Page 1 of 10
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
EntreMed, Inc.
--------------------------
(Name of Issuer)
Common Stock, $0.01 par value
--------------------------
(Title of Class of Securities)
29382F103
-----------
(CUSIP Number)
Bristol-Myers Squibb Company
345 Park Avenue
New York, NY 10154
(212) 546-4000
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 11, 1996
--------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Statement
because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
Check the following box if a fee is being paid with this
Statement: [X]
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise subject to the liabilities of that section of the Exchange
Act but shall be subject to all other provisions of the Exchange Act.
<PAGE>
Page 2 of 10
SCHEDULE 13D
- -----------------------------
CUSIP No. 29382F103
- -----------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BRISTOL-MYERS SQUIBB COMPANY
I.R.S. Employer Identification Number 22-079-0350
- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [ ]
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 1,319,443
BENEFICIALLY -------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
PERSON -------------------------------------
WITH 9 SOLE DISPOOSITIVE POWER
1,319,443
-------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,319,443
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT ON ROW (11)
10.6%
- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
<PAGE>
CUSIP No. 29382F103 Page 3 of 10
Item 1. Security and Issuer.
The class of equity securities to which this Statement
relates is the Common Stock, par value $0.01 per share (the "Common
Stock"), of EntreMed, Inc., a Delaware corporation (the "Issuer"),
which has its principal executive offices at 9610 Medical Center
Drive, Suite 200, Rockville, Maryland 20850.
Item 2. Identity and Background.
This Statement is being filed by Bristol-Myers Squibb
Company, a Delaware corporation (the "Company"). The Company conducts
its principal business and maintains its principal office at 345 Park
Avenue, New York, NY 10154. The Company is a diversified, worldwide
health and personal care company whose principal businesses are
pharmaceuticals, consumer products, nutritionals and medical devices.
The name, business address, present principal occupation or
employment and citizenship of each executive officer and director of
the Company is set forth on Schedule A which is incorporated herein by
reference.
During the past five years, neither the Company nor, to the
best knowledge of the Company, any of its executive officers or
directors (i) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) was a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and, as a result of such proceeding, was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On December 7, 1995, the Issuer and the Company entered into
a Restricted Stock Purchase Agreement, whereby the Company (i) agreed
to make an initial equity investment of $6,500,000 in the Common Stock
at a purchase price of $8.00 per share; (ii) was granted a warrant
(the "Warrant") to purchase an additional $10,000,000 of Common Stock
with an exercise price per share equal to 150% of the per share
offering price for the Common Stock in an initial public offering of
Common Stock at any time up to one year from the effective date of the
initial public offering; and (iii) agreed to make a second equity
investment of $5,000,000 in the Common Stock upon the consummation of
an initial public offering of the Common Stock at the same price per
share as the per share offering price in the initial public offering,
subject to certain conditions.
<PAGE>
CUSIP No. 29382F103 Page 4 of 10
On December 7, 1995, the Company acquired 541,666 shares of
Common Stock in connection with its initial equity investment. The
purchase price for the December 7, 1995 investment came out of the
working capital of the Company. On June 17, 1996, the Issuer completed
an initial public offering of its Common Stock with a per share
offering price of $15.00. Pursuant to a private placement that was
completed on June 17, 1996, the Company made its second equity
investment, acquiring 333,333 shares of Common Stock. The purchase
price for this investment came out of the working capital of the
Company. Based on the per share offering price in the initial public
offering, the Warrant currently represents the right to acquire
444,444 shares of Common Stock exercisable through June 11, 1997.
Item 4. Purpose of Transaction.
The Company has acquired the Common Stock of the Issuer for
the purpose of making an investment in the Issuer and not with the
view to, or for resale in connection with, any distribution thereof.
The Company has no present intention of selling, granting any
participation in, or otherwise distributing the Common Stock. The
Company does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participations
to such person or to any third person, with respect to any of the
Common Stock.
The shares of the Common Stock of the Issuer owned by the
Company have not been registered under the Securities Act of 1933.
Item 5. Interest in Securities of the Issuer.
To the best knowledge of the Company, the Company is the
beneficial owner of 1,319,443 shares of Common Stock of the Issuer (of
which 874,999 shares are directly owned and 444,444 shares are
beneficially owned pursuant to the Warrant) or approximately 10.6% of
the Common Stock of the Issuer currently outstanding. The Company has
the sole power to vote and dispose of all the shares of the Common
Stock of the Issuer which it owns.
Except as set forth in this Item 5 and on Schedule B
attached hereto which is incorporated herein by reference, neither the
Company nor, to the best knowledge of the Company, any of its officers
or directors owns any shares of Common Stock.
Except as set forth on Schedule B attached hereto which is
incorporated herein by reference, neither the Company nor, to the best
knowledge of the Company, any of its executive officers or directors
has effected any transaction in shares of Common Stock during the past
sixty (60) days.
<PAGE>
CUSIP No. 29382F103 Page 5 of 10
Item 6. Contracts, Arrangements, Understanding or Relationships
With Respect to Securities of the Issuer.
The Restricted Stock Purchase Agreement, the Warrant to
Purchase Common Stock of EntreMed, Inc. and the Registration Rights
Agreement filed as exhibits hereto are incorporated by reference in
their entirety. Except as set forth in the Restricted Stock Purchase
Agreement, the Warrant to Purchase Common Stock of EntreMed, Inc. and
the Registration Rights Agreement, neither the Company nor, to the
best knowledge of the Company, any of its officers or directors have
entered into any contracts, arrangements, understandings or
relationships (legal or otherwise) with respect to the Common Stock of
the Issuer.
Item 7. Material to be Filed as Exhibits.
(a) Restricted Stock Purchase Agreement, dated as of
December 7, 1995, between the Issuer and the Company (without
Exhibits).
(b) Warrant to Purchase Common Stock of EntreMed, Inc.,
dated December 7, 1995, by EntreMed, Inc.
(c) Registration Rights Agreement, dated as of December 7,
1995, between EntreMed, Inc. and Bristol-Myers Squibb Company.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is
true, complete and correct.
Dated: June 27, 1996 BRISTOL-MYERS SQUIBB
COMPANY
By: /s/ Alice C. Brennan
-------------------------
Alice C. Brennan
Vice President & Secretary
<PAGE>
CUSIP No. 29382F103 Page 6 of 10
SCHEDULE A
The following information sets forth the name, citizenship,
business address and present principal occupation of each of the
directors and executive officers of the Company. Each of the directors
and executive officers of the Company is a citizen of the United
States. Each of the Company's executive officer's business address is
345 Park Avenue, New York, New York 10154, unless otherwise indicated.
Name and Business Address Present Principal Occupation
Directors of Bristol-Myers
Squibb Company
Charles A. Heimbold, Jr. Chairman of the Board and Chief
Bristol-Myers Squibb Company Executive Officer
345 Park Avenue
New York, New York 10154
Robert E. Allen Chairman and Chief Executive
AT&T Company Officer
295 North Maple Avenue AT&T Company
Basking Ridge, New Jersey 07920
Michael E. Autera Executive Vice President
Bristol-Myers Squibb Company
345 Park Avenue
New York, New York 10154
Ellen V. Futter President
The American Museum of The American Museum of
Natural History Natural History
Central Park West at
79th Street
New York, New York 10024
Louis V. Gerstner, Jr. Chairman of the Board and Chief
IBM Corporation Executive Officer of IBM
Old Orchard Road Corporation
Armonk, New York 10504
<PAGE>
Name and Business Address Present Principal Occupation
John D. Macomber Principal of JDM Investment Group
JDM Investment Group
2806 N. Street, N.W.
Washington, D.C. 20007
James D. Robinson III Chairman and Chief Executive
J.D. Robinson Inc. Officer of RRE Investors, LLC and
126 East 56th Street President of J.D. Robinson Inc.
New York, New York 10022
Andrew C. Sigler Chairman and Chief Executive
Champion International Officer Champion
Corporation International Corporation
One Champion Plaza
Stamford, Connecticut 06921
Louis W. Sullivan, M.D. President of Morehouse
Morehouse School of Medicine School of Medicine
720 Westview Drive, S.W.
Atlanta, Georgia 30310-1495
Kenneth E. Weg Executive Vice President and
Bristol-Myers Squibb President, Bristol-Myers Squibb
Company Pharmaceutical Group
345 Park Avenue
New York, New York 10154
Officers of Bristol-Myers
Squibb Company
Charles A. Heimbold, Jr. Chairman of the Board, Director and
Chief Executive Officer
Michael E. Autera Executive Vice President and
Director
Harrison M. Bains, Jr. Treasurer and Vice President,
Corporate Staff
Alice C. Brennan Secretary and Vice President,
Corporate Staff
George P. Kooluris Senior Vice President, Corporate
Development, Corporate Staff
John L. McGoldrick General Counsel and Senior Vice
President, Corporate Staff
<PAGE>
CUSIP No. 29382F103 Page 8 of 10
Michael F. Mee Chief Financial Officer and
Senior Vice President,
Corporate Staff
Leon E. Rosenberg, M.D. President, Bristol-Myers Squibb
Pharmaceutical Research Institute
Frederick S. Schiff Controller and Vice President,
Corporate Staff
Charles G. Tharp, Ph.D. Senior Vice President,
Human Resources,
Corporate Staff
Kenneth E. Weg Executive Vice President and
Director, President,
Bristol-Myers Squibb
Pharmaceutical Group
<PAGE>
CUSIP No. 29382F103 Page 9 of 10
SCHEDULE B
Shares of Common Stock Owned
None.
Transactions in Shares of Common Stock
during the Last 60 Days
None.
<PAGE>
CUSIP No. 29382F103 Page 10 of 10
EXHIBIT INDEX
Exhibit
Number Document
1 Restricted Stock Purchase Agreement,
dated as of December 7, 1995, between
Bristol-Myers Squibb Company and
EntreMed, Inc. (without Exhibits).
2 Warrant to Purchase Common Stock of
EntreMed, Inc., dated December 7, 1995,
by EntreMed, Inc.
3 Registration Rights Agreement, dated as of
December 7, 1995, between EntreMed, Inc.
and Bristol-Myers Squibb Company.
EXHIBIT 1
<PAGE>
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of the 7th day of December, 1995 by and among EntreMed, Inc.,
a Delaware corporation, with its principal office at 9610 Medical
Center Drive, Rockville, Maryland 20850 (the "Company") and
Bristol-Myers Squibb Company, a Delaware corporation, with its
principal office at Post Box 4000, Princeton, New Jersey 08543-4000
("the Purchaser").
WHEREAS, the Company and the Purchaser have entered into a
Research Collaboration and License Agreement of even date herewith,
attached hereto as Exhibit A (the "License Agreement") pursuant to
which the Company will grant to the Purchaser a license to certain of
the Company's patent rights as further defined and described therein.
WHEREAS, in furtherance of and in partial consideration for the
execution and delivery of the License Agreement, the Company has
agreed to sell to the Purchaser and the Purchaser has agreed to
purchase an aggregate of 812,500 shares of the Company's common stock,
$.01 par value (the "Common Stock"), at a purchase price of $8.00 per
share, on the terms set forth herein and additional shares of the
Company's Common Stock as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
<PAGE>
1. Sale of the Shares.
1.01 Initial Sale by the Company. Subject to and upon the terms
and conditions of this Agreement, at the Initial Closing (as defined
in Section 2.01):
(a) The Company shall sell to the Purchaser, and the
Purchaser shall purchase from the Company, 812,500 shares of the
Company's Common Stock (the "Initial Shares"), at a purchase price of
$8.00 per share, for an aggregate purchase price of $6,500,000 (the
"Purchase Price"). The Purchase Price will be payable to the Company
at the Initial Closing by delivering to the Company a certified check
or wire transfer in the amount of the Purchase Price.
(b) The Company shall issue to the Purchaser a warrant
in the form attached hereto as Exhibit B (the "Warrant") for the
purchase of shares of the Company's Common Stock as set forth herein.
The Warrant shall expire on the earlier of (i) three (3) years
following the date of the Initial Closing, or (ii) one (1) year
following the IPO (as defined in Section 1.02). (The Company makes no
representation or agreement as to whether an IPO shall occur). The
Warrant may be exercised only following an IPO, if any. The exercise
price of each share of Common Stock which may be purchased under the
Warrant shall be equal to 150% of the initial public offering price of
a share of Common Stock in the IPO (the "Exercise Price"). The number
of shares of Common Stock for which the Warrant may be exercised shall
be equal to $10,000,000 divided by the Exercise Price.
1.02 Purchase of Additional Shares by the Purchaser . Subject
to and upon the terms and conditions of this Agreement, the terms and
conditions recommended by the managing
<PAGE>
underwriter of the IPO, and provided a Termination Event (defined
hereinafter) has not occurred, at the Company's initial public
offering of shares of Common Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended
(the "Securities Act") (such offering, the "IPO"), the Purchaser
hereby agrees that the Purchaser will purchase $5,000,000 of
additional shares of the Company's Common Stock at the initial public
offering price per share. The Purchaser's obligation under this
Section 1.02 shall be effective if and only if the IPO is an
underwritten offering, on a firm commitment basis, by a nationally or
regionally recognized investment banking firm which yields a minimum
of $15,000,000 in gross proceeds to the Company, including the
proceeds from the purchase of such Additional Shares (defined
hereinafter) by the Purchaser.
1.03 Antidilution Provision. In the event that, at any time
on or after the date of this Agreement and prior to its IPO, the
Company issues any Common Stock or Common Stock equivalents (the
"Below-Purchase Price Shares") for a consideration of less than $8.00
per share (subject to adjustment from and after the date of this
Agreement upon each stock dividend, stock split, reverse stock split,
or other reclassification or recapitalization or similar event),
taking into account the fair market value of any preferred stock
issued as units with the Common Stock included in any such issuance,
then upon such issuance the Company shall issue to the Purchaser such
number of shares of Common Stock (the "Antidilution Shares") in
accordance with the following formula:
The "Adjusted Per Share Purchase Price" equals (a) the sum of
(1) the number of Below-Purchase Price Shares to be issued by
the
<PAGE>
Company, multiplied by the per share offering price of such
Below-Purchase Price Shares, plus (2) the aggregate purchase
price paid by the Purchaser for the shares of Common Stock
then held by the Purchaser (the "Purchaser's Cost"); divided
by (b) the sum of (1) the number of shares of Common Stock
then held by the Purchaser, plus (2) the number of
Below-Purchase Price Shares to be issued by the Company;
provided, that in no event shall the Adjusted Per Share
Purchase Price be less than $6.00. The Purchaser's Cost shall
be divided by the Adjusted Per Share Purchase Price to
calculate the "Adjusted Shares." The Adjusted Shares minus
the number of shares of Common Stock acquired initially by
the Purchaser shall equal the number of Antidilution Shares
that the Company shall issue to the Purchaser.
All such Antidilution Shares shall be issued within ten (10) days
after the issuance of such Below-Purchase Price Shares to which they
relate, at no cost to the Purchaser.
The anti-dilution provisions in this Section 1.03 shall not
be applicable to:
(i) Common Stock issuable or issued to employees, advisors,
consultants or directors of the Company upon exercise of options,
restricted stock awards or similar arrangements which are approved by
the Board of Directors of the Company;
(ii) Common Stock issued to non-affiliates of the Company in
connection with bona fide research, licensing, acquisitions or
corporate partnering relationships, in connection
<PAGE>
with equipment lease financings, or upon exercise of warrants issued
to institutional lenders in connection with non-convertible debt
financings, in each case approved by the Board of Directors of the
Company, provided that such issuances are for other than primarily
equity financing purposes;
(iii) Common Stock issuable upon exercise or conversion of
options, warrants or other convertible securities outstanding on the
date hereof; or
(iv) Common Stock issued or issuable in connection with a
merger or consolidation as a result of which the holders of the
Company's outstanding securities immediately prior to the consummation
of such transaction hold securities in excess of fifty percent (50%)
of the voting power of the surviving or resulting entity.
The provisions of this Section 1.03 shall terminate upon the
closing of the IPO.
1.04 "Additional Shares" Defined. The term "Additional
Shares" shall mean all shares of Common Stock issued to the Purchaser
pursuant to the exercise of the Warrant and pursuant to Sections 1.02
and 1.03.
2. Conditions to Purchaser's Obligation. The obligation of the
Purchaser to purchase the Initial Shares and the Warrant pursuant to
Section 1.01 of this Agreement is subject to satisfaction of the
following conditions at or prior to the Initial Closing:
2.01 Representations and Warranties. Each of the
representations and warranties of the Company set forth in Section 6
hereof shall be true and correct as of the date of the Initial
Closing.
<PAGE>
2.02 Registration Rights Agreement. The Company and the
Purchaser shall have entered into the Registration Rights Agreement
attached hereto as Exhibit C (the "Registration Rights Agreement"),
and the Registration Rights Agreement shall be in full force and
effect as of the date of the Initial Closing.
2.03 License Agreement. The Company and the Purchaser shall
have executed and delivered the License Agreement and the License
Agreement shall be in full force and effect as of the date of the
Initial Closing.
2.04 Opinion of the Company's Counsel. The Purchaser shall
have received an opinion from Bachner, Tally, Polevoy & Misher LLP,
counsel to the Company, substantially in the form attached hereto as
Exhibit D, dated as of the date of the Initial Closing.
2.05 Documentation at the Initial Closing. The Purchaser
shall have received, prior to or at the Initial Closing, all of the
following documents or evidence of the occurrence of the following
events:
(a) An Officer's Certificate, executed by the President
of the Company and dated as of the date of the Initial Closing,
stating that the representations and warranties of the Company
contained in Section 6 hereof are true and correct as of the date of
the Initial Closing and that all of the obligations and covenants of
the Company contained in this Agreement required to be performed or
satisfied prior to or at the Initial Closing, including, without
limitation the conditions specified in Sections 2.01 through 2.04,
inclusive, have been performed or satisfied in all material respects.
<PAGE>
(b) A Secretary's Certificate, executed by the Secretary
or the Assistant Secretary of the Company and dated as of the date of
the Initial Closing, providing: (1) a certified copy of the
resolutions of the Board of Directors and, if required, the
stockholders, of the Company evidencing approval of this Agreement,
authorization for the issuance of the Initial Shares, the Warrant and
the Additional Shares, execution of all other agreements and documents
contemplated hereby, and performance of all of the transactions
contemplated hereby and thereby; (2) a certified copy of the
Certificate of Incorporation of the Company, as amended and in effect
as of the date of the Initial Closing; (3) a certified copy of the
by-laws of the Company, as amended and in effect as of the date of the
Initial Closing; and (4) the names of officers of the Company
authorized to sign this Agreement, the certificate for the Initial
Shares, the Warrant, and the other documents or certificates to be
delivered pursuant to this Agreement by the Company or any of its
officers, together with the true signatures of such officers.
(c) A certificate of good standing of the Company,
issued by the Secretary of State of the State of Delaware and each
State where the Company is qualified to do business as a foreign
corporation, dated as of the close of business on a date within ten
(10) business days of the date of the Initial Closing.
(d) Copies of all other documents evidencing other
necessary corporate or other action and third party and governmental
approvals, if any, with respect to this Agreement and the other
documents executed in connection with this Agreement and the
transactions contemplated hereby or thereby.
<PAGE>
2.06 Documents and Proceedings. All documents to be provided
to the Purchaser hereunder, and all corporate and other proceedings
taken or required to be taken in connection with the transactions
contemplated hereby and to be consummated at or prior to the Initial
Closing and all documents incident thereto, shall be reasonably
satisfactory in form and substance to the Purchaser or its counsel.
2.07 Waiver. Any condition specified in this Section 2 may be
waived by the Purchaser; provided, however, that no such waiver shall
be effective unless (i) it is set forth in a writing executed by the
Purchaser or (ii) the Purchaser consummates the Initial Closing.
3. Closing.
3.01 Initial Closing. The closing with respect to the
issuance of the Initial Shares and the Warrant (the "Initial Closing")
shall take place at the Company offices at 9610 Medical Center Drive,
Rockville, Maryland 20850 at 10:00 a.m., Rockville Time, on December
7, 1995 or at such other place, time or date as may be mutually agreed
upon in writing by the parties.
3.02 Delivery of Certificates Representing the Shares and
Warrant. At the Initial Closing, the Company shall deliver to the
Purchaser (i) a stock certificate, registered in the name of the
Purchaser, representing the Initial Shares, and (ii) a certificate,
registered in the name of the Purchaser, representing the Warrant,
and, at the IPO, a stock certificate registered in the name of the
Purchaser representing that number of Additional Shares required to be
issued pursuant to the terms of Section 1.02 and Section 1.03, if
applicable.
<PAGE>
4. Rights to Repurchase Shares.
(a) In the event that the License Agreement is
terminated as a result of a breach by the Purchaser thereunder or by
the Purchaser prior to its expiration (except as a result of a breach
by the Company), (such termination a "Termination Event"), the
Company, shall have the right and option, for sixty (60) days from the
occurrence of the Termination Event, to elect to purchase from the
Purchaser, and the Purchaser shall sell or cause to be sold to the
Company, upon the Company's exercise of such right, such number of
Initial Shares and any Additional Shares (collectively the "Option
Shares") owned by the Purchaser on such date as is specified by the
Company, at a per share price equal to (i) $8.00 per share with
respect to the Initial Shares, provided, that to the extent any
Additional Shares issued pursuant to Section 1.03 are outstanding on
such date, the per share purchase price for such Initial Shares and
any such shares issued pursuant to Section 1.03 shall equal the
Adjusted Per Share Purchase Price, (ii) the Exercise Price, with
respect to shares of Common Stock acquired pursuant to the exercise of
the Warrant, to the extent any such shares are outstanding, or (iii)
the purchase price established for the IPO, with respect to shares of
Common Stock purchased pursuant to Section 1.02, as the case may be.
Notwithstanding anything herein to the contrary, to the extent not
previously exercised, the Warrant shall terminate upon the occurrence
of any Termination Event.
The right to repurchase the Option Shares provided
in this Section 4(a) shall be exercised by the Company, if at all, by
delivery to the Purchaser during the applicable aforesaid 60-day
period, of a written notice of election to purchase such Option Shares
(the"Election Notice").
<PAGE>
(b) The number of Option Shares subject to repurchase
and the purchase price thereof, at the time of any stock dividend or
other distribution made on or in respect of the shares of capital
stock of the Company or any subdivision, combination, redemption or
reclassification of the outstanding capital stock of the Company or
received in exchange for the Option Shares or any part thereof, shall
be adjusted to give effect to such stock dividend, other distribution,
subdivision, combination, redemption or reclassification.
(c) The sale of Option Shares effected under the terms
of Section 4(a) hereof shall be made at the offices of the Company on
a mutually acceptable business day which day shall be within 15 days
after the expiration of the applicable 60-day period referred to in
Section 4(a), and shall be such 15th day if the parties do not agree
on such date. Delivery of certificates or other instruments evidencing
such Option Shares duly endorsed for transfer shall be made on such
date against payment of the purchase price thereof. Payment for the
Option Shares purchased pursuant to this Section 4 shall be made in
the form of a certified check or a wire transfer of clearing house
funds to an account designated by the Purchaser.
(d) Following the occurrence of a Termination Event, if
and to the extent that the Company does not exercise its right to
purchase the Option Shares within the exercise period, this Section 4
shall be null and void and the Purchaser may sell or otherwise
<PAGE>
transfer up to all of the Initial Shares and the Additional Shares,
subject only to compliance with the provisions of Section 5 of this
Agreement and any applicable laws or regulations.
5. Procedures on Sale of Shares to Third Parties by the Purchaser.
Except as otherwise expressly provided herein, the Purchaser hereby
agrees that it shall not Sell (as defined in subsection (e) below) any
Initial Shares or Additional Shares, as the case may be (the "Offered
Shares") to any person other than the Company, except in accordance
with the following procedures:
(a) The Purchaser shall first deliver to the Company a
written notice (the "Transfer Notice"), which Transfer Notice shall be
irrevocable for a period of thirty (30) days after delivery thereof
(the "Offer Period"), offering to the Company, all of the Offered
Shares proposed to be sold by the Purchaser at the purchase price and
on the terms specified therein. The Company shall have the right and
option, at its sole discretion, for a period of 30 days after its
receipt of the Transfer Notice, to accept the offer of all, but not
less than all, of the Offered Shares at the purchase price and upon
the terms stated in the Transfer Notice. Such acceptance will be made
by delivery of a written notice to the Purchaser within the Offer
Period (the "Acceptance Notice").
(b) The sale of Offered Shares under the terms of Section
5(a) above shall be made at the offices of the Company on a mutually
acceptable business day, which day shall be within 15 days after the
expiration of the Offer Period and shall be such 15th day if the
parties do not agree on such date. Delivery of certificates or other
instruments evidencing such Offered Shares duly endorsed for transfer
shall be made on such date against payment of the purchase price
therefor. Payment for the Offered Shares purchased pursuant to this
Section 5 shall be made in the form of a certified check or a wire
transfer of clearing house funds to an account designated by the
Purchaser.
<PAGE>
(c) If effective acceptance shall not be received pursuant to
Section 5(a) above with respect to all Offered Shares offered for sale
pursuant to the Transfer Notice then the Purchaser may Sell to a third
party or third parties all, but not less than all, the shares so
offered for sale at a price not less than the price, and on terms not
more favorable to the purchaser thereof than the terms, stated in the
Transfer Notice, at any time within 90 days after the expiration of
the Offer Period. In the event that such shares are not sold by the
Purchaser during such 90-day period, the right of the Purchaser to
Sell such shares without renewed compliance with this Section 5 shall
expire and the obligations of this Section 5 shall be reinstated;
provided, however, that in the event that the Purchaser determines, at
any time during such 90-day period, that the sale of all of the shares
on the terms set forth in the Transfer Notice is impracticable, the
Purchaser can terminate the offer of the shares to a third party or
parties and reinstate the procedure provided in this Section 5 without
waiting for the expiration of such 90-day period.
(d) Anything contained herein to the contrary
notwithstanding, any third party purchaser of shares pursuant to this
Section 5 who or which is not a signatory to an agreement with the
Company that places restrictions on such Offered Shares substantially
similar to the restrictions set forth in Section 7.02(d)-(e) of this
Agreement shall agree in writing, as a condition to such sale, to be
bound by all applicable provisions of Section 7.02(d)-(e) of this
Agreement .
<PAGE>
(e) As used above, the term "Sell" shall mean to sell, or in
any other way, directly or indirectly, transfer, assign, distribute,
pledge, encumber or otherwise dispose of, either voluntarily or
involuntarily any of the Initial Shares or Additional Shares.
(f) Anything contained herein to the contrary
notwithstanding, the provisions of this Section 5 shall not be
applicable (i) if, and to the extent that, the Purchaser Sells any
Offered Shares to the public pursuant to a registration statement
declared effective by the Securities and Exchange Commission under the
Securities Act, (ii) if, and to the extent that, the Purchaser Sells
any Offered Shares after the IPO in an open-market transaction meeting
the "manner of sale" requirements set forth in Rule 144 under the
Securities Act or (iii) after the third anniversary of the IPO.
(g) The Company shall not be required (a) to transfer on its
books any of the shares which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or (b)
to treat as owner of such shares or to pay dividends to any transferee
to whom any such shares shall have been sold or transferred.
6. Representations of the Company. The Company represents and
warrants to the Purchaser that:
6.01 Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite power and authority
(corporate and other) to execute and deliver this Agreement and to
<PAGE>
consummate the transactions contemplated hereby. The Company is duly
qualified to do business and is in good standing in all jurisdictions
in which its ownership of property or the character of its business
requires such qualification and in which the failure to be so
qualified would have a material adverse effect on the Company.
6.02 Authorization. The execution and delivery by the Company
of this Agreement, and any other documents and agreements to be
executed in connection with this Agreement (the "Company's Transaction
Documents"), and the consummation by the Company of all transactions
contemplated hereunder, including without limitation the issuance and
sale of the Initial Shares, the Warrant, and the Additional Shares to
the Purchaser pursuant to Section 1, have been duly authorized by all
requisite corporate action (other than any required increase in the
authorized capital stock of the Company, which increase, if required,
will be recommended by the Company to its stockholders). The Company's
Transaction Documents have been duly executed by the Company and
constitute the valid and legally binding obligations of the Company,
enforceable against it in accordance with their respective terms,
subject to laws of general application relating to bankruptcy,
insolvency, relief of debtors and equitable principles and except as
rights to indemnity or contribution may be limited by applicable law.
The execution, delivery and performance by the Company of the
Company's Transaction Documents and the consummation by the Company of
the transactions contemplated thereby, will not, with or without the
giving of notice or the passage of time or both, (i) conflict with or
result in a breach of the material terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any
lien, security interest, charge or encumbrance upon the Company's
capital stock or assets pursuant to, (iv) give any third party the
right to accelerate any obligation under, (v) result in a violation
of, or (vi) require any authorization, consent, approval, exemption
<PAGE>
or other action by or notice to any court or administrative or
governmental body pursuant to, the certificate of incorporation or
by-laws of the Company, or any law, statute, rule or regulation to
which the Company is subject, or any material agreement, instrument,
order, judgment of decree to which the Company is subject, except
where any such event listed above would not have a material adverse
effect on the Company. Except as set forth on Exhibit E, the issuance
of the Initial Shares and the Warrant do not, and the issuance of the
Additional Shares will not, require any further corporate action
related specifically to such issuances (other than any required
increase in the authorized capital stock of the Company, which
increase, if required, will be recommended by the Company to its
stockholders), and are not and will not be subject to any preemptive
or other preferential rights or similar statutory or contractual
rights either arising pursuant to any agreement or instrument to which
the Company is a party or which is otherwise binding upon the Company.
6.03 Compliance with Other Instruments, Laws. The Company is
in compliance in all respects with the terms and provisions of this
Agreement and of its certificate of incorporation and by-laws. To the
Company's knowledge, the Company is in compliance in all material
respects with the terms and provisions of the mortgages, indentures,
leases, agreements and other instruments and of all judgments,
decrees, governmental orders, statutes, rules or regulations by which
it is bound or to which it or any of its material properties or assets
are subject and which the failure to comply with would have a
materially adverse effect upon the Company, and the Company has not
received notice of any claimed default with respect to such judgments,
decrees, orders, statutes, rules and regulations.
<PAGE>
6.04 Governmental Approval. Subject to the accuracy of the
Purchaser's representations herein, no authorization, consent,
approval, license, exemption of or filing or registration with any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, under any applicable laws or
regulations presently in effect, is or will be necessary for, or in
connection with, the offer, issuance, sale, execution or delivery by
the Company of the Initial Shares, the Warrant, the Additional Shares
or for the performance by the Company of its obligations under this
Agreement or any other Company's Transaction Documents except as may
be required under the Securities Act or applicable state securities
laws.
6.05 Capitalization; Status of Capital Stock. The authorized
capital of the Company consists of: (i) 5,000,000 shares of Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of which
3,000,000 shares are issued and outstanding; and (ii) 20,000,000
shares of Common Stock, par value $.01 per share (the "Common Stock"),
of which 8,744,852 shares are issued and outstanding. Exhibit E sets
forth a list of the principal stockholders of the Company. The Initial
Shares and the Additional Shares, when issued, delivered and paid for
in accordance with the terms hereof, will be authorized, validly
issued and fully paid and nonassessable. Except as set forth on
Exhibit E, there are no options, warrants, convertible securities or
other rights to purchase shares of capital stock or other securities
of the Company which are authorized, issued or outstanding, nor is the
Company obligated in any other manner to issue shares of its capital
stock or other securities, and the Company has no obligation to
purchase, redeem or otherwise acquire any shares of its capital stock
or any interest therein or to pay any dividend or make any other
distribution in respect thereof, except as contemplated
<PAGE>
by this Agreement or as set forth on Exhibit E. Except as otherwise
contemplated by this Agreement or as set forth on Exhibit E, no person
is entitled to any preemptive right, right of first refusal or similar
right with respect to the issuance of any capital stock of the
Company, and there are no restrictions on the transfer of shares of
capital stock of the Company other than those imposed by relevant
state and federal securities laws. Assuming the accuracy of the
Purchaser's representations herein and the issuance to the Purchaser
pursuant to the terms hereof, the offer, sale or issuance of the
Initial Shares and the Warrant do not require registration under the
Securities Act or any applicable state securities laws. There exists
no agreement between the Company and the Company's stockholders with
respect to the voting or transfer of the Company's capital stock,
except as set forth on Exhibit E or otherwise disclosed in this
Agreement.
6.06 Investments; Subsidiaries. The Company does not own of
record or beneficially, or hold the right to acquire, directly or
indirectly (i) any share of capital stock or security convertible into
or exercisable for capital stock of any other corporation, or (ii) any
interest in any partnership, joint venture, business trust or other
non-corporate business enterprise. The Company does not control,
directly or indirectly, any other entity.
6.07 Litigation. Except as set forth on Exhibit E or as
otherwise disclosed to the Purchaser, there is no litigation or
governmental proceeding or investigation pending or, to the knowledge
of the Company, threatened against the Company affecting any of its
properties or assets or, to the knowledge of the Company, against any
officer or key employee of the Company which might result, either in
any case or in the aggregate, in any material adverse
<PAGE>
change in the business, operations, affairs or condition of the
Company or any of its properties or assets, or which might call into
question the validity of this Agreement, the Warrant, any of the
Initial Shares or the Additional Shares or any action taken or to be
taken pursuant hereto, nor, to the knowledge of the Company, has there
occurred any event nor does there exist any condition on the basis of
which any such litigation, proceeding or investigation might properly
be instituted. The Company, to the knowledge of the Company, is not in
default with respect to any order, writ, injunction, decree, ruling or
decision of any court, commission, board or other government agency
that might result, either in any case or in the aggregate, in any
material adverse change in the business, operations, affairs or
financial condition of the Company or any of its properties or assets.
The foregoing sentences include, without limiting their generality,
actions pending or threatened (or any basis therefor known to the
Company) involving the prior employment of any of the Company's
officers or key employees or their use in connection with the
Company's business of any information or techniques allegedly
proprietary to any of their former employers.
6.08 Registration Rights. Except as set forth in the
Registration Rights Agreement and on Exhibit E, no person has demand
or other rights to cause the Company to file any registration
statement under the Securities Act relating to any securities of the
Company or any right to participate in any such registration
statement.
6.09 Material Contracts. Except as set forth on Exhibit E,
the Purchaser or its counsel has been supplied with a true and correct
copy, in certain cases redacted to protect confidential information,
of the material contracts and agreements of the Company (including
<PAGE>
lease obligations required to be capitalized in accordance with
applicable Statements of the Financial Accounting Standards Board).
6.10 Certain Agreements of Officers and Employees. (a) To the
Company's knowledge, no officer or key employee of the Company is in
violation of any term of any employment contract, patent disclosure
agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant relating to the right of any
such officer or employee to be employed by the Company because of the
nature of the business conducted or presently proposed to be conducted
by the Company or relating to the use of trade secrets or proprietary
information of others.
(b) The Company has taken all reasonable measures
designed to protect and preserve the security and confidentiality of
its proprietary information, including its trade secret and other
confidential information. Each officer and key employee of the Company
who has or has had access to proprietary information of the Company
has executed a nondisclosure and assignment of invention agreement
deemed adequate by the Company to protect its proprietary information.
To the knowledge of the Company, no officer or key employee of former
officer or key employee of the Company is in violation of the terms of
the aforesaid agreements relating to the use of confidential or
proprietary information of the Company including, without limitation,
any disclosure of any proprietary information which is the subject of
the License Agreement.
<PAGE>
6.11 Title to Assets, Patents.
(a) The Company has good and marketable title in fee to
such of its fixed assets as are real property, and good and
merchantable title to all of its other material assets, free of any
material mortgages, pledges, charges, liens, security interests or
other encumbrances, except such encumbrances and liens which arise in
the ordinary course of business and do not materially impair the
Company's ownership or use of such property or assets and except as
set forth on Exhibit E. The Company enjoys peaceful and undisturbed
possession under all leases under which it is operating, and all said
leases are valid and subsisting and in full force and effect.
(b) The Company owns or has a license to use the
patents, patent rights, licenses, permits, trade secrets, trademarks,
trademark rights, trade names or trade name rights or franchises,
copyrights, inventions, know-how, technical information and other
intellectual property rights (including, without limitation,
confidential information material to the conduct of its business as
now operated) (the "Proprietary Rights").
6.12 Financial Statements.
(a) The Company has furnished to the Purchaser the
following financial statements: (i) the audited balance sheet of the
Company (the "Audited Balance Sheet") at December 31, 1994, and the
related audited income statement and statement of cash flows of the
Company for the year then ended, certified by the Company's
independent public accountants (the Audited Balance Sheet and related
income statement and statement of cash flows are hereinafter
collectively referred to as the "Audited Financial Statements") and
(ii) the unaudited
<PAGE>
balance sheet of the Company (the "Interim Balance Sheet") at June 30,
1995, and the related unaudited income statement of the Company for
the six months then ended (the Interim Balance Sheet and related
income statement are hereinafter collectively referred to as the
"Unaudited Financial Statements").
(b) The Audited Financial Statements, including all
notes thereto (if any), are complete and correct in all material
respects and present fairly the financial condition and results of
operations of the Company, as of the dates and for the periods
indicated, and have been prepared in accordance with generally
accepted accounting principles consistently applied. The Unaudited
Financial Statements are in accordance with the books and records of
the Company and present fairly the financial condition and results of
operations of the Company, as of the dates and for the periods
indicated.
6.13 Absence of Changes. Since the Interim Balance Sheet
Date, (i) there has been no material adverse change in the assets,
liabilities or financial condition of the Company from that reflected
in the Interim Balance Sheet, except for changes in the ordinary
course of business; and (ii) none of the business, prospects,
financial condition, operations property or affairs of the Company has
or have been materially adversely affected by any occurrence or
development, whether or not insured against; it being understood,
however, that the Company continues to incur additional operating
losses and decreases in working capital and the Company has raised
approximately $1,800,000 in additional capital pursuant to the
Confidential Private Placement Memorandum dated December 31, 1994.
<PAGE>
6.14 Employees; ERISA.
(a) No officer, director, employee or agent of the
Company has been or is authorized by the Company to make or receive,
and the Company does not know of any such person making or receiving,
any bribe, kickback or other similar payment on behalf of the Company
and known by the Company to be illegal.
(b) Except as set forth on Exhibit E, the Company
does not maintain or contribute to, and has not maintained or
contributed to, an "employee benefit plan", as such term is defined in
Section 3 of Employee Retirement Income Security Act ("ERISA"), with
respect to which the Company is required to file IRS Form 5500, and
the Company does not presently contribute to and never has contributed
to any "multi-employer plan," as such term is defined in Section 3 of
ERISA.
6.15 Books and Records. The minute books of the Company
contain complete and accurate records of all meetings and other
corporate actions of its shareholders and its Board of Directors and
committees thereof.
6.16 No Brokers or Finders. Except as otherwise disclosed to
the Purchaser, no person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or
valid claim against or upon the Company for any commission, fee or
other compensation as a finder or broker because of any act by the
Company or of any agent of the Company. The Company will pay, and hold
the Purchaser harmless against, any liability, loss or expense
(including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any claim for any
such commission, fee or other compensation.
<PAGE>
6.17 Closing Date. The representations and warranties of the
Company contained in this Section 6 and elsewhere in this Agreement,
and all information contained in any exhibit, schedule or attachment
hereto or in any writing delivered by, or on behalf of, the Company to
the Purchaser, will be true and correct in all material respects on
the date of the Initial Closing as though then made, except as
affected by the transactions expressly contemplated by this Agreement.
Said representations and warranties shall not be reaffirmed by the
Company at the time the Additional Shares are purchased.
7. Representations of the Purchaser. The Purchaser represents and
warrants to the Company as follows:
7.01 (a) Organization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite power and authority
(corporate and other) to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The Purchaser is duly
qualified to do business and is in good standing in all jurisdictions
in which its ownership of property or the character of its business
requires such qualification and in which the failure to be so
qualified would have a material adverse effect on the Purchaser.
(b) Authorization. The execution and delivery by the
Purchaser of this Agreement and the consummation by the Purchaser of
all transactions contemplated hereunder has been duly authorized by
all requisite corporate action. This Agreement has been duly executed
by the Purchaser. This Agreement and all other agreements and
obligations entered into and undertaken in connection with the
transactions contemplated hereby to which the
<PAGE>
Purchaser is a party constitute the valid and legally binding
obligations of the Purchaser, enforceable against it in accordance
with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency, relief of debtors and equitable
principles and except as rights to indemnity or contribution may be
limited by applicable law. The execution, delivery and performance by
the Purchaser of this Agreement and the consummation by the Purchaser
of the transactions contemplated hereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the
provisions of the Certificate of Incorporation or By-laws of the
Purchaser; or (b) violate any judgment, decree, order or award of any
court, governmental body or arbitrator or any material agreement to
which the Purchaser is a party or by which the Purchaser is bound.
7.02 Investment Representation.
(a) The Purchaser is acquiring the Initial Shares and
any Additional Shares for its own account for investment and not with
a view to, or for sale in connection with, any distribution thereof,
nor with any present intention of selling or distributing the same and
the Purchaser has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
distribution thereof.
(b) The Purchaser has carefully reviewed the
representations concerning the Company and has made a detailed inquiry
concerning the Company, its business and its personnel; the officers
of the Company have made available to the Purchaser the opportunity to
ask questions and receive answers concerning the terms and conditions
of the offering of the Initial Shares and any Additional Shares made
hereby and to obtain any additional information
<PAGE>
that the Company possesses or can acquire without unreasonable effort
or expense that is necessary to verify the accuracy of information
provided by the Company to the Purchaser; the Purchaser has sufficient
knowledge and experience in business and financial matters so as to be
able to evaluate the risks and merits of its investment in the Company
and is able to sustain a complete loss of its investment in the
Company; and the Purchaser is an "accredited investor," as defined in
Rule 501(a) of Regulation D promulgated under the Securities Act.
(c) The Purchaser understands that (i) there is
currently no market for the Company's Common Stock and there can be no
assurance that such a market will ever develop or be sustained, (ii)
the Initial Shares have not been registered under the Securities Act
and are "restricted securities" within the meaning of Rule 144 under
the Securities Act; (iii) the Initial Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from registration
is then available; (iv) in any event, the exemption from registration
under Rule 144 or otherwise may not be available for at least two
years and even then will not be available unless a public market then
exists for the Common Stock, adequate information concerning the
Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (v) there is now no
registration statement on file with the Securities and Exchange
Commission with respect to any stock of the Company and the Company
has no obligation or current intention to register the Initial Shares
under the Securities Act.
(d) The Purchaser will not attempt to sell, transfer or
otherwise dispose of all or any portion of the Initial Shares in the
absence of an effective registration statement
<PAGE>
unless (i) an exemption from such registration is available under the
Securities Act and (ii) if requested by the Company, the Purchaser
shall have furnished to the Company an opinion of reputable securities
counsel satisfactory in form and substance to the Company and its
counsel that such proposed sale, transfer or other disposition would
not be in violation of the Securities Act and applicable state
securities laws.
(e) A legend substantially in the following form will be
placed on the Certificate representing the Initial Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. THE TRANSFER
OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN
A RESTRICTED STOCK PURCHASE AGREEMENT DATED DECEMBER 7, 1995,
BY AND AMONG ENTREMED, INC. AND BRISTOL-MYERS SQUIBB COMPANY
AND NO TRANSFER OF SUCH SECURITIES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. COPIES
OF SUCH AGREEMENTS CAN BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF THIS CERTIFICATE TO THE
SECRETARY OF ENTREMED, INC.
7.03 No Brokers or Finders. No person has or will have, as a
result of the transactions contemplated by this Agreement, any right,
interest or valid claim against or upon the Purchaser for any
commission, fee or other compensation as a finder or broker because of
any act by the Purchaser or of any agent of the Purchaser. The
Purchaser will pay, and hold
<PAGE>
the Company harmless against, any liability, loss or expense
(including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
7.04 Closing Date. The representations and warranties of the
Purchaser contained in this Section 7 and elsewhere in this Agreement
and all information delivered by, or on behalf of, the Purchaser to
the Company, will be true and correct in all material respects on the
date of the Initial Closing as though then made, except as affected by
the transactions expressly contemplated by this Agreement and the
representations and warranties of the Purchaser in Section 7.02 shall
be true and correct in all material respects on the date Additional
Shares are purchased.
8. Reporting Covenants of the Company. Until the IPO, the Company
will furnish the following to the Purchaser, so long as the Purchaser
continues to own at least half of the Initial Shares purchased under
this Agreement:
8.01 If prepared in the ordinary course of the Company's
business, as soon as available, consolidated balance sheets of the
Company as of the end of each calendar quarter and consolidated
statements of income for such quarter and for the year to date setting
forth in each case in comparative form the corresponding figures for
the corresponding period of the preceding fiscal year.
8.02 As soon as available and in any event within ninety (90)
days after the end of each fiscal year of the Company, a copy of the
annual audited financial statements of the Company prepared by its
independent auditors, including therein consolidated and consolidating
balance sheets of the Company as of the end of such fiscal year and
consolidated and
<PAGE>
consolidating statements of income and retained earnings and of cash
flows for such fiscal year of the Company setting forth in each case
in comparative form the corresponding figures for the preceding fiscal
year, certified by independent public accountants of recognized
standing.
8.03 Each of the financial statements referred to in Section
8.01 and 8.02 will be complete and correct in all material respects as
of the dates and for the periods stated therein.
8.04 Within fifteen (15) days after the commencement thereof,
notice of all material actions and suits instituted by or against the
Company.
8.05 Except as otherwise required by law or judicial order or
decree of by any governmental agency or authority, each person
entitled to receive information regarding the Company under this
Section 8 will treat all nonpublic information obtained by it
thereunder which the Company reasonably designates as proprietary or
confidential in nature with the same care as it treats its own
confidential information and will use its best efforts to maintain the
confidentiality of such information; provided that each such Person
may disclose such information in connection with the sale or transfer
of any of the Initial Shares, the Warrant or the Additional Shares so
long as the transferee shall furnish the Company with a written
agreement to be bound by and comply with the confidentiality
provisions of this Section 8.04.
9. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if delivered
personally or sent by telex, nationally recognized overnight delivery
service, facsimile (receipt confirmed), registered or certified mail,
postage prepaid, addressed as follows or to such other address of
which the parties may have given notice:
<PAGE>
(i) if to the Purchaser, to:
Bristol-Myers Squibb Company
Post Box 4000 Princeton, New Jersey 08543-4000
Attn: Charles Linzner, Esq.,
Vice President and Senior Counsel,
Pharmaceutical Research
Institute and Worldwide Strategic
Business Development
Fax No.: (609) 252-4232
(ii) if to the Company, to:
EntreMed, Inc.
9610 Medical Center Drive
Rockville, Maryland 10850
Attn: President
Fax No.: (301) 217-9594
with a copy to:
Jill M. Cohen, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
18th Floor
New York, New York 10017
Fax No.: (212) 682-5729
Unless otherwise specified herein, such notices or other
communications shall be deemed delivered (a) on the date delivered, if
delivered by facsimile or personally; (b) on the day after the notice
is delivered into the possession and control of a nationally
recognized overnight delivery services, duly marked for delivery to
the receiving party; or (c) three business days after being sent, if
sent by registered or certified mail.
<PAGE>
10. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns, except that the Purchaser, on the one hand, and the Company,
on the other hand, may not assign their respective obligations
hereunder without the prior written consent of the other party. Any
assignment in contravention of this Section 10 shall be void. No
assignment shall release the Purchaser or the Company from any
obligation or liability under this Agreement unless expressly agreed
to by the non- assigning party.
11. Remedies. The parties acknowledge that a breach of this
Agreement will cause them irreparable harm which will be difficult to
quantify and for which money damages would be inadequate. Therefore,
in the event of such a breach or threat of such a breach, in addition
to any other legal or equitable remedies it may have, each party shall
be entitled to obtain specific performance of the other party's
obligations and to obtain immediate injunctive relief, in each case
without the necessity of posting a bond.
12. Standstill; Cooperation in Connection with IPO. The Purchaser
agrees that in the event of any underwritten public offering of
securities of the Company, the Purchaser will comply with and agree to
any reasonable restriction on the transfer of shares of Common Stock
imposed by an underwriter and shall perform all acts and sign all
necessary documents required with respect thereto.
13. Entire Agreement; Amendments. This Agreement and the other
writings referred to herein or delivered pursuant hereto contain the
entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior oral and
<PAGE>
written and all contemporaneous oral negotiations, commitments and
understandings between such parties. This Agreement may be amended
only by a written amendment executed by both parties.
14. Severability. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting in any way the
remaining provisions hereof in such jurisdiction or rendering that or
any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction.
15. Expenses. Except as otherwise expressly provided herein, the
Purchaser, on the one hand, and the Company, on the other hand, will
pay all fees and expenses (including, without limitation, legal and
accounting fees and expenses) incurred by each of them in connection
with the transactions contemplated hereby.
16. Survival of Representations and Warranties. All
representations and warranties made in this Agreement or any other
instrument or document delivered in connection herewith or therewith,
shall survive the execution and delivery hereof or thereof for a
period of three (3) years.
17. Waiver. No failure or delay on the part of a party hereto in
exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder.
<PAGE>
18. Further Assurances. From and after the date of this Agreement,
upon the reasonable request of one party hereto, the other party
hereto shall execute and deliver such instruments, documents and other
writings as may be necessary or desirable to confirm and carry out and
to effectuate fully the intent and purposes of this Agreement.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
regard to choice of law principles.
20. Section Headings. The section headings are for the convenience
of the parties and in no way alter, modify, amend, limit, or restrict
the contractual obligations of the parties.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which shall be one and the same document.
22. Person. The term Person as used in this Agreement means any
individual, partnership, corporation, trust or other entity.
IN WITNESS WHEREOF, this Agreement has been duly executed under
seal by the parties hereto and delivered as of the date first above
written.
ENTREMED, INC.
By: /s/ John W. Holaday, Ph.D.
--------------------------
John W. Holaday, Ph.D.
Chief Executive Officer
<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
By: /s/ Leon E. Rosenberg, M.D.
-----------------------------
Leon E. Rosenberg, M.D.
President, Pharmaceutical
Research Institute
<PAGE>
EXHIBIT 2
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES TO BE ISSUED UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO ENTREMED, INC. TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED. THE TRANSFER OF THIS WARRANT
AND OF THE SECURITIES TO BE ISSUED UPON THE EXERCISE HEREOF IS SUBJECT
TO THE CONDITIONS SPECIFIED IN A RESTRICTED STOCK PURCHASE AGREEMENT
DATED DECEMBER 7, 1995, BY AND BETWEEN ENTREMED, INC. AND
BRISTOL-MYERS SQUIBB COMPANY, AND NO TRANSFER OF THIS WARRANT OR OF
SUCH SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED. COPIES OF SUCH AGREEMENT CAN BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF THIS WARRANT TO THE SECRETARY OF
ENTREMED, INC.
Date: December 7, 1995
WARRANT TO PURCHASE
COMMON STOCK
OF
ENTREMED, INC.
THIS CERTIFIES that Bristol-Myers Squibb Company (the
"Warrant Holder"), or registered assigns, is entitled to purchase from
EntreMed, Inc. (the "Company"), a Delaware corporation, at any time
after the closing of the IPO (as such term is herein defined), if any
(the "Commencement Date"), and until the earliest of (i) 5:00 P.M.
(Eastern Time) on December 7, 1998, (ii) 5:00 P.M. Eastern Time on the
day that is the first anniversary of the closing of the sale of any
Common Stock (as such term is herein defined) by the Company to the
underwriter(s) in connection with the IPO (the "IPO Closing"), or
(iii) the termination of this Warrant pursuant to Section 2 hereof
(such earliest date or occurrence, the "Expiration Date"), such number
of fully paid and nonassessable Warrant Shares (as such term is herein
defined) as is obtained by dividing $10,000,000 by the Exercise Price
(as such term is herein defined), at a purchase price per Warrant
Share equal to the Exercise Price. The Exercise Price and the number
of Warrant Shares purchasable hereunder are subject to adjustment as
provided in Section 6.
<PAGE>
1. Definitions. For the purpose of this Warrant:
1.1 "Common Stock" shall mean the Company's common
stock, $0.01 par value per share.
1.2 "Purchase Agreement" shall mean the Restricted
Stock Purchase Agreement dated December 7, 1995 between the Company
and the Warrant Holder.
1.3 "IPO" shall have the meaning set forth in the
Purchase Agreement.
1.4 "Warrants" shall mean this original Warrant and
any and all Warrants that are issued in exchange or substitution for a
Warrant pursuant to the terms of such Warrant.
1.5 "Warrant Shares" shall mean the Common Stock
purchasable upon exercise of Warrants.
1.6 "Exercise Price" shall mean the price per share
at which Warrant Shares are purchasable hereunder, and shall equal
150% of the initial public offering price per share of Common Stock
under the IPO, as such price may be adjusted from time to time
hereunder.
2. Method of Exercise of Warrants. This Warrant may be
exercised at any time after the Commencement Date and prior to the
Expiration Date by the surrender of the Warrant, with the Notice of
Exercise attached hereto as Exhibit A properly completed and duly
executed, at the principal office of the Company at 9610 Medical
Center Drive, Rockville, Maryland 20850, or such other location which
shall at that time be the principal office of the Company (the
"Principal Office"), and upon payment to the Company by certified
check or bank draft or wire transfer of immediately available funds to
the order of the Company of the purchase price for the Warrant Shares
to be purchased upon such exercise; provided, however, that the
Warrants shall terminate upon, and shall not be exercisable after, the
accrual of the Company's right and option to repurchase the Option
Shares (as such term is defined in the Purchase Agreement) pursuant to
Section 4 of the Purchase Agreement. The person entitled to the
Warrant Shares so purchased shall be treated for all purposes as the
holder of such shares as of the close of business on the date of
exercise and certificates for the shares of stock so purchased shall
be delivered to the person so entitled within a reasonable time, not
exceeding thirty
<PAGE>
(30) days, after such exercise. Following the exercise of this Warrant
for fewer than all of the Warrant Shares purchasable hereunder, unless
this Warrant shall have expired, a new Warrant of like tenor and for
such number of shares as the holder of this Warrant shall direct,
representing in the aggregate the right to purchase a number of
Warrant Shares with respect to which this Warrant shall not have been
exercised, shall also be issued to the holder of this Warrant within
such time.
3. Exchange. This Warrant is exchangeable, upon the
surrender thereof by the holder thereof at the Principal Office of the
Company, for new Warrants of like tenor registered in such holder's
name and representing in the aggregate the right to purchase the
number of Warrant Shares purchasable under this Warrant, each of such
new Warrants to represent the right to subscribe for and purchase such
number of Warrant Shares as shall be designated by said holder at the
time of such surrender.
4. Transfer. Subject to restrictions on transfer set forth
herein, this Warrant is transferable, in whole or in part, at the
Principal Office of the Company by the holder hereof, in person or by
duly authorized attorney, upon presentation of this Warrant, properly
endorsed for transfer. Each holder of this Warrant, by holding it,
agrees that this Warrant, when endorsed in blank, may be deemed
negotiable, and that the holder thereof, when this Warrant shall have
been so endorsed, may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented
by this Warrant, or to the transfer thereof on the books on the
Company, any notice to the contrary notwithstanding.
5. Certain Covenants of the Company. The Company covenants
and agrees that all shares which may be issued upon the exercise of
this Warrant, will, upon issuance, be duly and validly issued, fully
paid and nonassessable; and that the Company will from time to time
take all such action as may be requisite to assure that the par value
per share of the Warrant Shares is at all times equal to or less than
then effective purchase price per share of the Warrant Shares issuable
pursuant to the Warrants. The Company further covenants and agrees
that during the period within which the purchase rights evidenced by
the Warrants may be exercised, the Company shall cause to be reserved
a sufficient number of shares of the Common Stock to provide for the
exercise of the rights represented by the Warrants.
<PAGE>
6. Adjustment of Purchase Price and Number of Shares. The
number and kind of securities purchasable upon the exercise of the
warrants and the Exercise Price shall be subject to adjustment from
time to time upon the happening of certain events as follows:
6.1 Reclassification, Consolidation or Merger. At
any time while the Warrants remain outstanding and unexpired, in case
of any reclassification or change of outstanding securities issuable
upon exercise of the Warrants (other than a change in par value, or
from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination of outstanding securities
issuable upon the exercise of the Warrants) or in case of any
consolidation or merger of the Company with or into another
corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification or change, other than a change in par value, or as a
result of a subdivision or combination of outstanding securities
issuable upon the exercise of the Warrants), or in the case of any
sale or transfer to another corporation of the property of the Company
as an entirety or substantially as an entirety, the Company, or such
successor or purchasing corporation, as the case may be, shall,
without payment of any additional consideration therefor, execute new
Warrants providing that the holders of the Warrant shall have the
right to exercise such new Warrants (upon terms not less favorable to
the holders thereof than those then applicable to the Warrants) and to
receive upon such exercise, in lieu of each share of Common Stock
theretofore issuable upon exercise of the Warrants, the kind and
amount of shares of stock, other securities, money or property
receivable upon such reclassification, change, consolidation, merger,
sale or transfer of the Warrants had the Warrants been exercised
immediately prior to such reclassification, change, consolidation,
merger, sale or transfer. Such new Warrants shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 6. The provisions of
this Section 6.1 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
transfers.
6.2 Subdivision or Combination of Shares. If the
Company at any time while the Warrants remain outstanding, exercisable
and unexpired shall subdivide or combine its Common Stock, the
Exercise Price shall be proportionately reduced, in case of
subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of
<PAGE>
its Common Stock for the purpose of so subdividing, as of such record
date, whichever is earlier, or shall be proportionately increased, in
the case of combination of such shares, as of the effective date of
such combination, or, if the Company shall take a record of holders of
its Common Stock for the purpose of so combining, as of such record
date, whichever is earlier.
6.3 Stock Dividends. If the Company at any time
while the Warrants remain outstanding, exercisable and unexpired shall
pay a dividend in shares of, or make other distribution of shares of,
its Common Stock, then the Exercise Price shall be adjusted, as of the
date the Company shall take a record of the holders of its Common
Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as at the date of such payment or
other distribution), to that price determined by multiplying the
Exercise Price in effect immediately prior to such payment or other
distribution by a fraction (i) the numerator which shall be the total
number of shares of Common Stock outstanding immediately prior to such
dividend or distribution, and (ii) the denominator of which shall be
the total number of shares of Common Stock outstanding immediately
after such dividend or distribution. The number of shares of Common
Stock at any time outstanding shall not include any shares thereof
then directly or indirectly owned or held by or for the account of the
Company or any wholly-owned subsidiary. The provisions of this Section
6.3 shall not apply under any of the circumstances for which an
adjustment is provided in Section 6.1 or 6.2.
6.4 Adjustment Upon Commencement Date. Upon the
Commencement Date, there shall be made any adjustments pursuant to
Section 6.2 or 6.3 that would have been made at the time of the
occurrence of any events requiring such adjustments that shall have
occurred subsequent to the date hereof but prior to the Commencement
Date.
6.5 Notice of Adjustments.
(a) Whenever the Exercise Price or the number of
shares of Common Stock purchasable under the terms of this Warrant at
the Exercise Price shall be adjusted (or shall become adjustable upon
the Commencement Date) pursuant to this Section 6, the Company shall
promptly prepare a Certificate signed by its President or a Vice
President and by its Treasurer or Assistant Treasurer or its Secretary
or Assistant Secretary, setting forth in reasonable detail the event
requiring the adjustment, the amount of the
<PAGE>
adjustment, the method by which such adjustment was calculated
(including a description of the basis on which the Company's Board of
Directors made any determination hereunder), and the Exercise Price
(if prior to the Commencement Date, the Company shall be required to
state the formula by which the Exercise Price shall be adjusted, in
lieu of the adjusted Exercise Price) and the number of shares of
Common Stock purchasable at that Exercise Price (if prior to the
Commencement Date, at the previous Exercise Price as adjusted by such
formula) after giving effect to such adjustment, and shall promptly
cause copies of such certificate to be communicated in accordance with
Section 13 hereof to the registered holder of this Warrant.
(b) In the event the Company shall, at a time
when the Warrants are exercisable, (i) take any action which pursuant
to Sections 6.1 through 6.3 may result in an adjustment of any of the
Exercise Price or the number of shares of Common Stock purchasable at
that Exercise Price upon exercise of the Warrants, or (ii) make a
distribution of its assets to the holders of its Common Stock as a
dividend in liquidation or by way or return of capital or other than
as a dividend payable out of earnings or surplus legally available for
dividends under applicable law or any distribution to such holders
made in respect of the sale of any or a substantial part of the
Company's assets (other than under the circumstances provided for in
the foregoing Sections 6.1 through 6.3), the Company shall give to the
registered holders of the Warrants at their last addresses known to
the Company written notice of such action ten (10) days in advance of
its effective date in order to afford to such holders of the Warrants
an opportunity to exercise the Warrants and to purchase shares of
Common Stock of the Company prior to such action becoming effective.
7. Payment of Taxes. All shares of Common Stock issued upon
the exercise of this Warrant shall be validly issued, fully paid and
nonassessable, and the Company shall pay all taxes and other
governmental charges that may be imposed in respect of the issue or
delivery thereof. The Company shall not be required, however, to pay
any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for shares of Common Stock in
any name other than that of the registered holder of the Warrant
surrendered in connection with the purchase of such shares, and in
such case the Company shall not be required to issue or deliver any
stock certificate until such tax or other charge has
<PAGE>
been paid or it has been established to the Company's satisfaction
that no tax or other charge is due.
8. Fractional Shares. The Warrant may be exercised for the
number of Warrant Shares obtained by dividing $10,000,000 by the
Exercise Price, rounded off to the nearest whole number of Warrant
Shares. No fractional Warrant Shares will be issued in connection with
any purchase hereunder but in lieu of such fractional shares, the
Company shall make a cash refund therefor equal in amount to the
product of the applicable fraction multiplied by the Exercise Price
paid by the holder for its Warrant Shares upon such exercise.
9. Loss, Theft, Destruction or Mutilation. Upon receipt by
the Company of evidence reasonably satisfactory to it that any Warrant
has been mutilated, destroyed, lost or stolen, and in the case of any
destroyed, lost or stolen Warrant, a bond of indemnity reasonably
satisfactory to the Company, or in the case of a mutilated Warrant,
upon surrender and cancellation thereof, the Company will execute and
deliver in the name of the holder of the Warrant, in exchange and
substitution for the Warrant so mutilated, destroyed, lost or stolen,
a new Warrant of like tenor substantially in the form thereof with
appropriate insertions and variations.
10. Company's Rights with Respect to Warrant Shares;
Restrictions on Transfer. Any Warrant Shares issued upon the exercise
of the Warrants shall be issued subject to the rights of the Company
with respect thereto as set forth in the Purchase Agreement,
including, without limitation, the right of the Company to repurchase
the Warrant Shares in the event the License Agreement (as such term is
defined in the Purchase Agreement) is terminated and the Company's
right of first refusal in connection with any subsequent transfer of
the Warrant Shares by the holder(s) thereof. In addition, any Warrant
Shares issued upon the exercise of the Warrants shall be issued
subject to the restrictions on transfer set forth in the Purchase
Agreement. Any Warrant or certificate for Warrant Shares issued in
exchange or substitution for an outstanding Warrant or outstanding
certificate for Warrant Shares shall bear appropriate restrictive
legend(s), if any, on such outstanding Warrant or outstanding
certificate for Warrant Shares unless under the terms of the Purchase
Agreement such legend(s), if any, on such outstanding Warrant or
outstanding certificate for Warrant Shares unless under the terms of
the Purchase Agreement such legend(s) may be removed.
<PAGE>
11. Notice of Closing. The Company shall provide the Warrant
Holder notice of the IPO Closing within three (3) business days after
the occurrence thereof.
12. Headings. The descriptive headings of the several
sections of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
13. Notice. Any notices or other communications required or
permitted hereunder shall be sufficiently given if delivered
personally or sent by telex, nationally recognized overnight delivery
service, facsimile (receipt confirmed), registered or certified mail,
postage prepaid, addressed as follows or to such other address of
which the parties may have given notice:
(i) if to the Warrant Holder, to:
Bristol-Myers Squibb Company
Post Box 4000
Princeton, New Jersey 08543-4000
Attn: Charles Linzner, Esq., Vice President and
Senior Counsel, Pharmaceutical Research
Institute and Worldwide Strategic Business
Development
Fax No.: (609) 252-4232
(ii) if to the Company, to:
EntreMed, Inc.
9610 Medical Center Drive
Rockville, Maryland 20850
Attn: President
Fax No.: (301) 217-9594
with a copy to:
Jill A. Cohen, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
Fax No.: (212) 682-5729
Unless otherwise specified herein, such notices or other
communications shall be deemed delivered (i) on the date delivered, if
delivered by telex or facsimile personally; (ii) on the day
<PAGE>
after the notice is delivered into the possession and control of a
nationally recognized overnight delivery service, duly marked for
delivery to the receiving party; or (iii) three (3) business days
after being sent, if sent by registered or certified mail.
14. Amendment. This Warrant may be modified, amended or
changed only with the written consent of the Company and the Warrant
Holder.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
regard to choice of law principles.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed by its duly authorized officer as of the date hereof.
ENTREMED, INC.
By:
------------------------------
Name: John W. Holaday, Ph.D
Title: Chief Executive Officer
<PAGE>
EXHIBIT 3
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of December 7, 1995 (the
"Registration Agreement"), between EntreMed Inc., a Delaware
corporation (the "Company"), and Bristol-Myers Squibb Company, a
Delaware corporation ("BMS").
PRELIMINARY STATEMENTS
A. The Company and BMS are parties to a Restricted Stock Purchase
Agreement of even date herewith (such Agreement being the "Stock
Purchase Agreement," and the terms defined therein and not otherwise
defined herein being used herein as therein defined) pursuant to which
BMS will acquire the Initial Shares and the Additional Shares, or the
right to acquire Additional Shares, as the case may be (the Initial
Shares and the Additional Shares collectively, the "Shares").
B. Under the terms of the Stock Purchase Agreement, the Company
has agreed to provide BMS with the registration rights set forth in
this Registration Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce BMS to acquire the Shares pursuant to the Stock Purchase
Agreement, the parties hereto hereby agree as follows:
1. Demand Registration.
1.1 Requests for Registration. If at any time after the
one-year anniversary of the closing of the IPO, BMS is an "affiliate"
of the Company, as such term is defined under Rule 144 promulgated
pursuant to the Securities Act or any similar successor rule ("Rule
144"), BMS may request registration under the Securities Act of all or
part of the Registrable Securities under the Securities Act (such
registration, a "Demand Registration"); provided, however, that the
Company shall not be required to effect more than one (1) Demand
Registration. Such request for registration must specify the number of
Registrable Securities requested to be registered and the anticipated
price per share for such offering. If the number of shares of
Registrable Securities to be offered hereunder shall be restricted,
the number of shares to be included in the offering shall be
determined pursuant to the provisions of Section 1.4.
<PAGE>
1.2 Limitations on Demand. Notwithstanding the foregoing,
the Company shall not be obligated to file a registration statement
relating to the Demand Registration under Section 1.1 hereof if
counsel to the Company renders an opinion to the effect that
registration is not required for the proposed transfer of Registrable
Securities. In addition, the filing of any registration statement
relating to the Demand Registration may be delayed: (i) during the
period starting on the date sixty (60) days prior to the Company's
good faith estimate of the date of filing of, and ending on (a) the
date ninety (90) days after the effective date, or (b) the date of
abandonment, of any registration statement relating to the offering of
any of the Company's securities, provided that the Company is
employing good faith efforts to cause such registration statement to
become effective; and (ii) if the Company reasonably anticipates that
it will consummate, within ninety (90) days after the date of BMS's
request for registration under this Section 1, a significant business
transaction that would be adversely affected, to the material
detriment of the Company, by a Demand Registration (all in the good
faith determination of the Company's Board of Directors), provided
that the registration statement relating to the Demand Registration
shall be filed no later than ninety (90) days after the earlier of the
closing or execution of agreements or documents (or any such similar
event) consummating such transaction or the abandonment of such
transaction, but in any event not later than 180 days after the
receipt of BMS's request to register under this Section 1; provided,
however, that to the extent that the rights provided in Sections 1 and
2 hereof would otherwise terminate in accordance with Section 9.1
hereof during any period during which a request is delayed pursuant to
this Section 1.2, the termination date provided for in Section 9.1
shall be extended for a period of time equal to such delay.
1.3 Effective Registration and Expenses. A registration will
not count as the Demand Registration under Section 1.1 hereof until
the registration statement filed with respect thereto has become
effective; provided, however, that if BMS shall cause or request the
Company to withdraw any such registration statement, BMS may
thereafter request the Company to reinstate such registration
statement, if permitted under the Securities Act, or to file another
Demand Registration, in accordance with the procedures set forth
herein, only upon agreeing in writing to reimburse the Company for all
Registration Expenses (as defined in Section 5 hereof) over and above
those Registration Expenses which the Company would have incurred had
such Demand Registration not
<PAGE>
been withdrawn, provided that the Company is eligible to use a Form
S-3 registration statement (or any similar successor form) in
connection with any such request. The Company shall use its best
efforts to cause the registration statement relating to any Demand
Registration to remain effective for nine (9) months if the
registration statement is filed pursuant to Rule 415 under the
Securities Act (or any similar rule that may be adopted by the U.S.
Securities and Exchange Commission (the "SEC")), unless, at the time
of filing, the Company qualifies for the use of a Form S-3
registration statement, in which case the Company shall use its best
efforts to maintain the effectiveness of the Demand Registration for
the lesser of two years or until such time as all Registrable
Securities involved therein can be sold pursuant to Rule 144 without
limitation as to amount. Otherwise, such registration statement shall
remain effective for 90 days. BMS shall pay all reasonable
commissions, fees and expenses of any underwriter or underwriters that
manage or administer the offering made in connection with the
registration of the Registrable Securities pursuant to the Demand
Registration and of counsel to BMS. Except as provided above, the
Company will pay all other Registration Expenses (as such term is
herein defined) in connection therewith, whether or not it becomes
effective. The Company shall not be required to undergo or pay for any
special audit to effect any registration statement under this Section
1, and if such a special audit would be required in order to file or
effect a registration statement hereunder, the Company shall be
entitled to delay the filing or effectiveness of such registration
statement until a reasonable period of time following the completion
of such audit in the ordinary course of the Company's activities;
provided, however, that the Company shall not be entitled to delay the
filing or effectiveness of such registration statement if BMS agrees
to pay for the cost of any such special audit.
1.4 Selection of Underwriters; Priority on Demand
Registrations. If BMS elects to have the offering of Registrable
Securities pursuant to the Demand Registration be in the form of an
underwritten offering, BMS shall select and obtain the investment
banker or investment bankers and manager or managers that will
administer the offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld. The Company shall comply
with the reasonable requests for information made by BMS or any
potential underwriter in connection with BMS's proposed retention of
such underwriter. In such event, if the managing underwriter or
underwriters of such offering advise the Company and
<PAGE>
BMS in writing that in its or their opinion the aggregate amount of
Registrable Securities requested to be included in such offering would
materially and adversely affect the success of such offering or the
price of the Registrable Securities to be offered, the securities to
be registered shall be allocated first to BMS, next to the Company and
finally, subject to rights granted by the Company prior to the date
hereof, to any securityholders of the Company exercising any
"piggyback" registration rights. If all of the Registrable Securities
requested to be included by BMS in the Demand Registration have been
included, the Company shall be entitled to include that number of
shares of its unissued Common Stock or other securities as are
consented to by the managing underwriter.
2. Piggyback Registrations.
2.1 Right to Piggyback. If, at any time when BMS is an
"affiliate" of the Company, as such term is defined under Rule 144,
the Company proposes to register (each such proposed registration, an
"Eligible Registration") any of its securities under the Securities
Act (other than pursuant to a Demand Registration, a registration
statement on Form S-4 or S-8 (or any form substituting therefor) or a
registration statement filed in connection with an exchange offer or
offering of securities solely to the Company's existing stockholders
or employees) at any time following the one year anniversary of the
closing of the IPO, the Company will give prompt written notice to
BMS, so long as BMS owns any Registrable Securities at the time of
each such Eligible Registration, of the Company's intention to effect
such a registration and, subject to the provisions of Section 2.3
below, will use all reasonable efforts to cause the managing
underwriter or underwriters to permit BMS to include in such
registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within
twenty (20) days after the delivery of the Company's notice. The
Company will not be required to effect more than two (2) Piggyback
Registrations. For purposes of this Section 2.1, "Piggyback
Registration" shall mean an Eligible Registration in which any
Registrable Securities are actually included and the registration
statement therefor becomes effective. If, at any time after giving
written notice of its intention to register any securities in an
Eligible Registration and prior to the effective date of the
registration statement filed in connection with such Eligible
Registration, the Company shall determine for any reason not to
register such securities, the Company may give written notice of such
determination to each
<PAGE>
holder of Registrable Securities and, thereupon, shall be relieved of
its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith).
2.2 Piggyback Expenses. The Registration Expenses of BMS
will be paid by the Company in connection with all Piggyback
Registrations.
2.3 Priority on Primary Registrations. If an Eligible
Registration is an underwritten registration primarily on behalf of
the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in
such offering without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable
Securities and any other securities entitled to the benefit of
registration rights existing on the date of this Registration
Agreement ("Third Party Registrable Securities") requested to be
included in such registration, pro rata among the holders of such
Registrable Securities and Third Party Registrable Securities on the
basis of the number of securities owned by each holder, and (iii)
third, any other securities requested to be included in such
registration.
2.4 Priority on Secondary Registrations. If an Eligible
Registration is an underwritten secondary registration solely on
behalf of holders of the Company's securities, and the managing
underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company
will include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration and
the Registrable Securities and Third Party Registrable Securities
requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of securities
owned by each such holder, and (ii) second, other securities requested
to be included in such registration.
2.5 Other Registrations. If the Company has previously filed
a registration statement with respect to Registrable Securities
pursuant to Section 1 or pursuant to this Section 2, and
<PAGE>
if such previous registration has not been withdrawn or abandoned, the
Company will not cause to be effected any other registration of any of
its equity securities or securities convertible or exchangeable into
or exercisable for its equity securities under the Securities Act
(except on Form S-4 or Form S-8 or any successor forms or pursuant to
Rule 415(a)(1)(iii) or 415(a)(1)(iv) promulgated pursuant to the
Securities Act), whether on its own behalf or at the request of any
holder or holders of such securities, until the earlier of (i) 90 days
after the effective date of such previous registration statement, or
(ii) the sale of all Registrable Securities included in such
registration statement.
3. Holdback Agreements.
To the extent not inconsistent with applicable law, BMS
agrees not to effect any public sale or distribution of the issue
being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144, during the 14 days
prior to, and during the 120-day period beginning on, the effective
date of the registration statement referred to in Section 1 or Section
2 hereof in which BMS participates as a selling stockholder (except as
part of the registration). In addition, BMS agrees not to effect any
public sale or distribution of any security of the Company, including
a sale pursuant to Rule 144, during the 180-day period beginning on
the effective date of the registration statement relating to the IPO.
4. Registration Procedures.
4.1 Efforts by the Company. Whenever BMS has requested that
any Registrable Securities be registered pursuant to this Registration
Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
4.1.1 Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best
efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company will furnish to the
counsel selected by BMS copies of all such documents proposed to be
filed, which documents will be
<PAGE>
subject to the review of such counsel with respect to information
relating to BMS and its proposed method of distribution);
4.1.2 Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective for a period that is the longer of (i) the period
specified in Section 1.3, or (ii) 90 days, and comply in all material
respects with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
4.1.3 Furnish to BMS such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as BMS may reasonably
request in order to facilitate the disposition of the Registrable
Securities;
4.1.4 Use its best efforts to register or qualify
such Registrable Securities under such other securities or blue sky
laws of such jurisdictions as BMS reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable BMS to consummate the disposition in such
jurisdictions of the Registrable Securities owned by BMS (provided
that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this Section 4.1.4, (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
4.1.5 Notify BMS, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement
of a material fact or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and, at the request of BMS, the
Company will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will
<PAGE>
not contain an untrue statement of a material fact or omit to state
any fact necessary to make the statements therein not misleading;
4.1.6 Use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed;
4.1.7 Provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of
such registration statement;
4.1.8 Enter into such customary agreements
(including underwriting agreements in customary form) and take all
such other reasonable actions as BMS reasonably requests in order to
expedite or facilitate the disposition of such Registrable Securities;
4.1.9 Make available for inspection by BMS, any
underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by BMS or any such underwriter, all material financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, key employees and
independent accountants to supply all information reasonably required
by BMS, or any such underwriter, attorney, accountant or agent in
connection with its due diligence investigation relating to such
registration statement, provided that customary confidentiality
restrictions may be imposed in connection with any such inspection;
4.1.10 In the event such sale is pursuant to an
underwritten offering, use reasonable efforts to obtain a "cold
comfort" letter from the Company's independent certified public
accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the managing
underwriter, or, if in connection with an underwritten Demand
Registration, BMS, reasonably requests;
4.1.11 Use reasonable efforts to obtain an opinion
or opinions from counsel for the Company in customary form addressed
to the managing underwriter or underwriters, if any; and
4.1.12 Otherwise use reasonable efforts to comply
with all rules and regulations of the SEC applicable to the Company
(and exclusive of any such rules and regulations pertaining
<PAGE>
to the distribution of securities, as such), and make available to
its security holders, as soon as reasonably practicable, an
earnings statement covering a period of twelve months, beginning
within three months after the end of the fiscal quarter in which
the registration statement becomes effective, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
4.2 Information To Be Furnished by BMS. The Company may
require BMS to furnish to the Company such information regarding BMS,
the Registrable Securities and other securities of the Company held by
BMS, and the intended manner of distribution of the Registrable
Securities as the Company may from time to time reasonably request,
provided that, except as otherwise required by the Securities Act or
any other applicable securities laws, customary confidentiality
restrictions may be imposed in connection with the furnishing of any
such information.
4.3 Discontinuance of Disposition. BMS agrees that, upon
receipt of any notice from the Company of the happening of any event
of the kind described in Section 4.1.5 hereof, BMS will forthwith
discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until BMS'
receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4.1.5 hereof, and, if so directed by the
Company, BMS will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in BMS' possession,
of the prospectus covering such Registrable Securities current at the
time of the delivery of such notice. In the event the Company shall
give any such notice, the Company shall extend the period during which
such registration statement shall be maintained effective pursuant to
this Registration Agreement by the number of days during the period
from and excluding the date of the delivery of such notice pursuant to
Section 4.1.5 hereof to and including the date when BMS shall have
received the copies of the supplemented or amended prospectus
contemplated by Section 4.1.5 hereof.
5. Registration Expenses.
Except as set forth in Section 1.3 hereof or in the last
sentence of this Section 5, all expenses incident to the Company's
performance of or compliance with this Registration Agreement,
including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws
<PAGE>
(including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the fees and expenses
incurred in connection with the listing of the securities to be
registered on each securities exchange on which such securities are
required to be listed, and fees and disbursements of counsel for
the Company and its independent certified public accountants
(including the expenses of any special audit conducted at the
Company's option or "cold comfort" letters required by or incident
to such performance), securities acts liability insurance (if the
Company elects to obtain such insurance), the reasonable fees and
expenses of any special experts retained by the Company in
connection with such registration, and fees and expenses of other
persons retained by the Company (all such expenses, the
"Registration Expenses") will be borne by the Company; provided,
however, that, in connection with the registration or qualification
of the Registrable Securities under state securities laws, nothing
herein shall be deemed to require the Company to make any payments
to third parties in order to obtain "lock-up," escrow or other
extraordinary agreements. BMS shall pay the fees and expenses of
its counsel, underwriting discounts and commissions attributable to
the sale of its Registrable Securities, and its other out-of-pocket
expenses, as well as the cost of any special audits required by it.
6. Indemnification.
6.1 Indemnification by the Company. The Company agrees to
indemnify, to the extent permitted by law, BMS, its officers and
directors and each person who controls BMS (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading,
except insofar as the same are caused by or contained in any
information furnished in writing to the Company by or on behalf of BMS
expressly for use therein or by BMS' failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder with a sufficient
number of
<PAGE>
copies of the same. In connection with an underwritten offering
that includes Registrable Securities, the Company will indemnify
such underwriters, their officers and directors and each person who
controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the
indemnification of the holders of BMS.
6.2 Information Provided by BMS; Indemnification by BMS. In
connection with any registration statement that includes Registrable
Securities, BMS will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use
in connection with any such registration statement or prospectus and,
to the extent permitted by law, will indemnify the Company, its
directors and officers and each person who controls the Company
(within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so
furnished in writing by or on behalf of BMS.
6.3 Indemnification Procedure. Any person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. The indemnifying
party will not be subject to any liability for any settlement made by
the indemnified party without its consent (but such consent will not
be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will be obligated
to pay the reasonable fees and expenses of one counsel for all parties
indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict
of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which case the
<PAGE>
indemnifying party shall be obligated to pay the reasonable fees
and expenses of one additional counsel to the indemnified party.
6.4 Survival of Indemnification; Contribution. The
indemnification provided for under this Registration Agreement will
remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the
transfer of securities. The Company also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. Participation in Underwritten Registrations. BMS may not
participate in any registration hereunder which is underwritten unless
BMS (a) agrees to sell BMS' securities on the same basis provided in
any underwriting arrangements approved by the person or persons
entitled hereunder to approve such arrangements, and (b) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms
of such underwriting arrangements.
8. Definition of Registrable Securities. "Registrable Securities"
shall mean (i) any Shares issued pursuant to the Stock Purchase
Agreement, (ii) any Shares issued pursuant to the exercise, in whole
or in part, of the warrant (the "Warrant") granted to BMS under the
Stock Purchase Agreement, and (iii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) or
(ii) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they have
been distributed to the public pursuant to an offering registered
under the Securities Act or through a broker, dealer or market maker
in compliance with Rule 144.
9. Termination and Non-availability of Registration Rights.
9.1 Termination. Except as otherwise provided in Section 1.2
hereof, no holder of Registrable Securities shall be entitled to
exercise any right provided for in Section 1 hereof at any time after
three (3) years following the closing of the IPO. Except as otherwise
provided in Section 1.2 hereof, no holder of Registrable Securities
shall be entitled to exercise any right
<PAGE>
provided for in Section 2 hereof at any time after four (4) years
following the closing of the IPO.
9.2 Non-availability. Notwithstanding anything in this
Registration Agreement to the contrary, no holder of Registrable
Securities shall be entitled to exercise any right provided for in
Section 1 or Section 2 hereof (i) at any time that the aggregate
number of outstanding Registrable Securities is less than the maximum
number of securities that would be permitted to be sold under Rule 144
within any period of three (3) consecutive months (or any other
applicable period of time under any future amendment of Rule 144 or
any successor thereto), and (ii) at any time that such holder is
eligible to sell any Registrable Securities pursuant to paragraph (k)
of Rule 144.
10. Miscellaneous.
10.1 No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities
which is inconsistent with or violative of the rights granted to BMS
as a holder of Registrable Securities in this Registration Agreement.
10.2 Adjustments Affecting Registrable Securities. The
Company will not take any action, or permit any change to occur, with
respect to the Company's Securities which would materially and
adversely affect the ability of BMS to include Registrable Securities
in a registration undertaken pursuant to this Registration Agreement.
10.3 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Registration Agreement may be amended
only by a writing executed by each of the parties hereto.
10.4 Further Assurances. Each of the parties hereto will, at
any time and from time to time after the date of the Initial Closing,
upon the request of and at the cost of the other party, execute,
acknowledge and deliver all further acts, assignments, transfers,
conveyances and powers of attorney that may be required to carry out
the provisions of this Registration Agreement.
10.5 Successors and Assigns. All covenants and agreements in
this Registration Agreement by or on behalf of any of
<PAGE>
the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Registration
Agreement which are for the benefit of purchasers or holders of
Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities; provided,
however, that notwithstanding anything herein to the contrary, no
subsequent holder of Registrable Securities shall be entitled to
any rights under this Registration Agreement unless such person
acquires at least twenty-five percent (25%) of the Registrable
Securities held by BMS immediately prior to such acquisition; and
provided, further, that no holder of Registrable Securities (other
than BMS) shall be entitled to any rights under this Registration
Agreement unless such person holds, at the time of the exercise of
such rights, at least 100,000 Registrable Securities.
10.6 Severability. Whenever possible, each provision of this
Registration Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Registration Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder
of this Registration Agreement.
10.7 Descriptive Headings. The descriptive headings of this
Registration Agreement are for convenience only and shall be of no
force or effect in construing or interpreting any of the provisions of
this Registration Agreement.
10.8 Governing Law. This Registration Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, applicable to contracts executed and performed wholly within
the State of Delaware, and without regard to conflict of law
principles.
10.9 Notices.
Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or sent
by telex, nationally recognized overnight delivery service, facsimile
(receipt confirmed), registered or certified mail,
<PAGE>
postage prepaid, addressed as follows or to such other address of
which the parties may have given notice:
(i) If to the Purchaser, to:
Bristol-Myers Squibb Company
Post Box 4000
Princeton, New Jersey 08543-4000
Attn: Charles Linzner, Esq., Vice
President and Senior
Counsel, Pharmaceutical
Research Institute and
Worldwide Strategic Business
Development
Fax No.: (609) 252-4232
(ii) If to the Company, to:
EntreMed, Inc.
9610 Medical Center Drive
Rockville, Maryland 20850
Attn: President
Fax No.: (301) 217-9594
with a copy to:
Jill A. Cohen, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
Fax No.: (212) 682-5729
Unless otherwise specified herein, such notices or other
communications shall be deemed delivered (a) on the date delivered, if
delivered by telex or facsimile personally; (b) on the day after the
notice is delivered into the possession and control of a nationally
recognized overnight delivery service, duly marked for delivery to the
receiving party; or (c) three business days after being sent, if sent
by registered or certified mail.
10.10 Entire Agreement. This Registration Agreement,
together with the Stock Purchase Agreement, including all the
documents referred to herein and therein, embodies the entire
agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein. There are no
<PAGE>
restrictions, promises, representations, warranties, covenants or
undertakings other than those expressly set forth or referred to
herein or therein. This Registration Agreement and the Stock
Purchase Agreement supersede all prior agreements and
understandings between the parties with respect to such
transactions.
10.11 Counterparts. This Registration Agreement may be
executed simultaneously in two counterparts, either one of which need
not contain the signature of more than one party, but both such
counterparts taken together shall constitute one and the same
agreement.
16
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused
this Registration Agreement to be executed by its duly authorized
officer as of the date first written above.
ENTREMED, INC.
By:
------------------------------
Name: John W. Holaday, Ph.D.
Title: Chief Executive Officer
BRISTOL-MYERS SQUIBB COMPANY
By:
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Name:
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Title:
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