<PAGE> 1
FORM 10-K/A NO.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
/X/ Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the fiscal year ended September 30, 1997 or
/ / Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
Commission file number 0-15190
OSI Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 13-3159796
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 Charles Lindbergh Blvd., Uniondale, N.Y. 11553
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 222-0023
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which registered
None None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, par value $.01 per share
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / /
As of November 28, 1997, the aggregate market value of the Registrant's voting
stock held by non-affiliates was $133,215,769. For purposes of this calculation,
shares of Common Stock held by directors, officers and stockholders whose
ownership exceeds five percent of the Common Stock outstanding at November 28,
1997 were excluded. Exclusion of shares held by any person should not be
construed to indicate that such person possesses the power, direct or indirect,
to direct or cause the direction of the management or policies of the
Registrant, or that such person is controlled by or under common control with
the Registrant.
As of November 28, 1997, there were 22,263,969 shares of the Registrant's $.01
par value common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive proxy statement for its 1998
annual meeting of stockholders are incorporated by reference into Part III.
<PAGE> 2
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
and Exchange Act of 1934, the Company has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
OSI PHARMACEUTICALS, INC.
By: /s/ Robert L. Van Nostrand
--------------------------
Robert L. Van Nostrand
Chief Financial Officer
Date: April 9, 1998
-2-
<PAGE> 3
INDEX TO EXHIBITS
Exhibits
3.1 Certificate of Incorporation, as amended (1)
3.2 Bylaws, as amended (1)
10.1 1985 Stock Option Plan (filed as an exhibit to the Company's
registration statement on Form S-1 (file no. 33-3148) and
incorporated herein by reference)
10.2 1989 Incentive and Non-Qualified Stock Option Plan (filed as an
exhibit to the Company's registration statement on Form S-8 (file
no. 33-38443) and incorporated herein by reference)
10.3 1993 Incentive and Non-Qualified Stock Option Plan, as amended
(filed as an exhibit to the Company's registration statement on
Form S-8 (file no. 33-64713) and incorporated herein by
reference)
10.4 Stock Purchase Plan for Non-Employee Directors (filed as an
exhibit to the Company's registration statement on Form S-8 (file
no. 333-06861) and incorporated herein by reference)
10.5 1995 Employee Stock Purchase Plan (filed as an exhibit to the
Company's registration statement on Form S-8 (file no. 333-06861)
and incorporated herein by reference)
10.6 1997 Incentive and Non-Qualified Stock Option Plan (filed as an
exhibit to the Company's registration statement on Form S-8 (file
no. 333-39509) and incorporated herein by reference)
10.7+ Collaborative Research Agreement dated April 1, 1996 between the
Company and Pfizer Inc. (2)
10.8+ License Agreement dated April 1, 1996 between the Company and
Pfizer Inc. (2)
10.9+ Stockholders' Agreement dated April 23, 1996 among Anaderm
Research Corp., the Company, Pfizer Inc., New York University and
certain individuals (2)
10.10+ Collaborative Research Agreement dated April 23,1996 amount the
Company, Pfizer Inc. and Anaderm Research Corp. (2)
10.11 Registration Rights Agreement dated April 11, 1996 among the
Company and the former stockholders of MYCOsearch, Inc. and their
designees (2)
-3-
<PAGE> 4
10.12 Form of Warrants issued by the Company to the former stockholders
of MYCOsearch, Inc. and their designees covering an aggregate of
100,000 shares of common stock (2)
10.13 Employment Agreement dated April 11, 1996 between the Company and
Dr. Barry Katz (2)
10.14+ Collaborative Research Agreement dated as of December 31, 1991
between the Company and American Home Products Corporation (3)
10.15+ Amendatory Agreement dated as of December 31, 1993 between the
Company and American Home Products Corporation (3)
10.16** Common Stock Purchase Warrant granted to Marion Merrell Dow, Inc.
dated December 11, 1992
10.17 Collaborative Agreement dated as of April 19, 1995 between the
Company and Novartis Pharma AG (4)
10.18 Letter Agreement dated as of April 19, 1995 between the Company
and Novartis Pharma AG (4)
10.19 Registration Rights Agreement dated as of April 19, 1995 between
the Company and Novartis Pharma AG (4)
10.20 Asset Purchase Agreement dated June 26, 1995 among the Company,
Calbiochem-Novabiochem International, Inc. and
Calbiochem-Novabiochem Corporation (5)
10.21 New Product License Right of First Refusal Agreement dated August
2, 1995 between the Company and Calbiochem-Novabiochem
Corporation (5)
10.22 Employment Agreement dated as of February 9, 1990 between the
Company and Gary E. Frashier (6)
10.23 Form of Employment Agreement dated as of August 27, 1991, which
is substantially identical in all material respects to the
Employment Agreement dated as of April 28, 1993 between the
Company and Colin Goddard, Ph.D. (6)
10.24+ Agreement dated September 27, 1996 between the Company and Becton,
Dickinson and Company (6)
10.25+ Collaborative Research and License Agreement dated as of January
1, 1997 between the Company and Bayer Corporation (7)
10.26+ Collaborative Research, Development and Commercialization
Agreement dated as of May 1, 1996 between the Company and BioChem
Pharma (International) Inc. (7)
-4-
<PAGE> 5
10.27+ EPO Collaborative Research and License Agreement dated as of
January 1, 1997 between the Company and Hoechst Marion Roussel,
Inc. (8)
10.28+ Collaborative Research, Development and License Agreement dated as
of February 12, 1997 by and among the Company, Sankyo Company,
Ltd., and MRC Collaborative Center (8)
10.29+ Collaborative Research, Development and Commercialization
Agreement dated as of March 7, 1997
between the Company and Sepracor, Inc. (8)
10.30+ License Agreement dated as of March 18, 1997 between the Company
and The Dow Chemical Company (8)
10.31 Amended and Restated Collaborative Research and License Agreement
effective as of April 1, 1997 by and among the Company, Hoechst
Marion Roussel, Inc. and Hoechst Aktiengesellschaft (9)
10.32**+ Stock Subscription Agreement dated as of July 17, 1997 by and
between the Company and Helicon Therapeutics, Inc.
10.33*+ License and Services Agreement dated as of July 17, 1997 by and
between the Company and Helicon Therapeutics, Inc.
10.34*+ Stockholders' Agreement dated as of July 17, 1997 by and among
Helicon Therapeutics, Inc. and certain stockholders of Helicon
Therapeutics, Inc.
10.35*+ Convertible Preferred Stock Purchase Agreement dated as of July
17, 1997 by and among Helicon Therapeutics, Inc., the Company,
Hoffman-La Roche, Inc. and Cold Spring Harbor Laboratory.
10.36**+ Collaborative Research and License Agreement effective as of July
1, 1997 by and between Hoffman-La Roche, Inc. and Helicon
Therapeutics, Inc.
21** Subsidiaries of the Company
23** Consent of KPMG Peat Marwick, LLP, independent public accountants
27** Financial Data Schedule
99** Additional Exhibits: Risk Factors
- ------------------------------------
* Filed herewith.
** Previously filed.
-5-
<PAGE> 6
+ Portions of this exhibit have been redacted and are subject to a
confidential treatment request filed with the Secretary of the
Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
(1) Filed as an exhibit to the Company's registration statement on Form S-3
(file no. 333-937) and incorporated herein by reference.
(2) Filed as an exhibit to the Company's quarterly report on Form 10-Q for
the fiscal quarter ended March 31, 1996, as amended, and incorporated
herein by reference.
(3) Filed as an exhibit to the Company's quarterly report on Form 10-Q for
the fiscal quarter ended December 31, 1995, as amended, and
incorporated herein by reference.
(4) Filed as an exhibit to the Company's annual report on Form 10-K for the
fiscal year ended September 30, 1995, as amended, and incorporated
herein by reference.
(5) Filed as an exhibit to the Company's current report on Form 8-K dated
August 2, 1995 and incorporated herein by reference.
(6) Filed as an exhibit to the Company's annual report on Form 10-K for the
fiscal year ended September 30, 1996 and incorporated herein by
reference.
(7) Filed as an exhibit to the Company's quarterly report on Form 10-Q for
the fiscal quarter ended December 31, 1996 and incorporated herein by
reference.
(8) Filed as an exhibit to the Company's quarterly report on Form 10-Q for
the fiscal quarter ended March 31, 1997 and incorporated herein by
reference.
(9) Filed as an exhibit to the Company's quarterly report on Form 10-Q for
the fiscal quarter ended June 30, 1997 and incorporated herein by
reference.
-6-
<PAGE> 1
Portions of this Exhibit 10.33 have been redacted and are the subject
of a confidential treatment request filed with the Secretary of the Securities
and Exchange Commission.
<PAGE> 2
LICENSE AND SERVICES AGREEMENT
This LICENSE AND SERVICES AGREEMENT, made the 17th day of July, 1997,
by and between Oncogene Science, Inc. ("OSI"), a Delaware corporation having its
principal place of business at 106 Charles Lindbergh Boulevard, Uniondale, New
York 11553, and Helicon Therapeutics, Inc. ("Company"), a Delaware corporation,
having its principal place of business at 106 Charles Lindbergh Boulevard,
Uniondale, New York 11553.
WHEREAS, the Company was organized to discover, develop and market
pharmaceutical products; and
WHEREAS, OSI is engaged in research relating to molecular screening and
modulation transcription; and
WHEREAS, the Company wishes to obtain the use of certain proprietary
technology controlled by OSI for identifying the effect of compounds on genes
and gene expression which is useful in the process of developing products for
the treatment and prevention of human disease; and
WHEREAS, the Company wishes to obtain the services of OSI in molecular
screening;
NOW, THEREFORE, in consideration of the agreements and covenants herein
and for other valuable consideration, receipt of which is hereby acknowledged,
it is mutually agreed and covenanted by and among the parties to this Agreement
that:
1. Licenses.
a. OSI hereby grants to the Company a world-wide, ** ,
non-exclusive license for a period of ten years, beginning as
of the date of the issuance of Preferred Stock, $.01 par value
per share, of the Company ("Preferred Stock") to OSI pursuant
to paragraph 6 of this Agreement, in the Field ("long term
memory and modulation of CREB ** activity in synaptic
plasticity"), to use the technology and to commercialize the
products which are the subject of patent
- -------------------------
** This portion has been redacted pursuant to a confidential treatment
request.
<PAGE> 3
applications with numbers as set forth in Exhibit 1 hereto
("Applications") [and certain other technology, all] covering
a method of screening and modulation transcription. However,
if any patent or patents ("Patents") are issued as the result
of the Applications, the rights granted under this paragraph
1(a) will terminate as to the territory within the scope of
the Patents and the provisions of paragraph 1(b) below shall
apply.
b. OSI hereby grants to the Company a ** , non-exclusive license,
for a period beginning on the date of the first issuance of
the Patents and terminating on the date of the last expiration
of the Patents, in the Field, to use and commercialize the
"Patent Rights," which are (i) all Patents issued from the
Applications or from divisionals or continuations of the
Applications, (ii) all claims of United States and foreign
continuation-in-part applications and patents which are
directed to subject matter specifically described in the
Applications, (iii) all claims of all foreign patent
applications and patents which are directed to subject matter
specifically described in the United States patents and/or
patent applications described in (i) or (ii), and (iv) any
reissues or reexaminations or United States patents described
in (i), (ii) or (iii).
c. The licenses granted in paragraphs 1(a) and 1(b) may by mutual
agreement be extended on a case by case basis.
2. The Company recognizes that the Applications contain highly valuable
proprietary, confidential information ("Confidential Information") and
agrees that, until the Applications have been finally processed by the
applicable governmental entity, it will (i) keep confidential, and
cause its employees to keep confidential, all Confidential Information,
and (ii) not use Confidential Information except as expressly permitted
in this Agreement. The Company also agrees that disclosure of the
Confidential Information to any officer, employee, agent or consultant
shall be made only if and to the extent necessary to carry out the
Company's responsibilities under, first, the Collaborative Research and
License Agreement ("Collaboration Agreement") by and between
Hoffmann-La Roche Inc. and the Company, to be entered, and, second, the
Funded Research and License Agreement ("Research Agreement") by and
between CSHL and the Company, heretofore or hereafter entered, and
shall be limited to the maximum extent possible consistent with such
responsibilities. The Company agrees not to disclose Confidential
Information to any third party under any circumstance without written
permission. The Company shall take such action to preserve the
confidentiality of the Confidential Information as it would customarily
take to preserve the confidentiality of its own confidential
information. The Company represents that all of its employees which
shall have access to the Confidential Information are bound by
agreement to maintain such information in confidence. Confidential
Information will be so designated by OSI in writing at the time of
disclosure
- --------------------
** This portion has been redacted pursuant to a confidential treatment
request.
-2-
<PAGE> 4
to the Company, and will include that information which as of the date
of disclosure to the Company is not (a) known to the Company other than
by virtue of a prior confidential disclosure to the Company by OSI, or
(b) disclosed in the published literature, or otherwise generally known
to the public, or (c) obtained from a third party that has no
obligation of confidentiality to OSI.
3. OSI represents and warrants to the Company that (a) it is the holder of
the Applications, (b) it has the right to grant the licenses granted in
this Agreement, (c) there are no claims made against the Applications,
and that (d) the licenses granted do not conflict with or violate the
terms of any agreement between CSHL and any third party.
4. Protection of Rights.
a. Each party shall promptly notify the other party in writing of
any alleged or threatened infringement of the Patents of which
it becomes aware. OSI shall have the right but not the
obligation to bring, at its own expense and in its sole
control, an appropriate action against any person or entity
infringing the Patents. The Company shall be entitled to
separate representation in the matter by counsel of its own
choice and at its own expense, and shall fully cooperate with
OSI in prosecuting the action.
b. If OSI or the Company is sued by a third party for
infringement of a patent because of the Company's exercise of
the rights granted in this Agreement, the party which has been
sued shall promptly notify the other party in writing of the
institution of the suit. The Company shall give to OSI all
authority (including the right to exclusive control of the
defense of any such suit, action, or proceeding and the
exclusive right to compromise, litigate, settle or otherwise
dispose of any such suit, action or proceeding), information
and assistance necessary to defend or settle any such suit,
action or proceeding. OSI shall bear the expenses for
defending against any alleged infringement due to the exercise
of the rights granted in this Agreement. OSI agrees to defend,
protect, indemnify and hold harmless the Company from and
against any loss or expense arising from any claim of a third
party that it has been granted rights by OSI and that the
Company in exercising its rights granted to it by OSI pursuant
to this Agreement, has infringed upon the rights granted to
such third party by OSI.
5. OSI will provide, during a one year period beginning as of the date of
the issuance of the Preferred Stock by the Company to OSI pursuant to
paragraph 6 of this Agreement, ** . OSI's collaborative rate is based
upon ** allocated in the same manner as OSI does in its other
collaborative research programs; an
- --------------------
** This portion has been redacted pursuant to a confidential treatment
request.
-3-
<PAGE> 5
example of OSI's collaborative rate calculations is set forth in the
initial budget for the Company. Initially, the collaborative rate for
the Services is as set forth in Schedule A to this Agreement. The
Services will be provided according to a Work Plan which will be
established by the parties on a quarterly basis. For the first three
month period, beginning as of the date of the issuance of the Preferred
Stock by the Company to OSI pursuant to paragraph 6 of this Agreement,
the Work Plan is set forth in Schedule B to this Agreement.
6. In consideration for the rights granted herein, the Company will issue
to OSI ** shares of its Preferred Stock within two days of the date of
this Agreement as more fully set forth in the Subscription Agreement.
7. Should ownership or control of the Company change due to a transaction
or related series of transactions which result in more than fifty
percent of the Company's voting stock being transferred to a single
entity or related group of entities within a six month period, or in
the sale of all or substantially all of the assets of its business, the
Company shall inform OSI in writing of the relevant event within thirty
days of its occurrence. If the acquiring entity does not agree in
writing to assume and be bound by the obligations of this Agreement by
providing written notice thereof to OSI within thirty days of the date
the written notice of the occurrence of the event is provided to OSI,
OSI may, at any subsequent time but not later than ninety days
following receipt of notice of occurrence of the event, terminate the
licenses and the Services provided pursuant to this Agreement upon
giving three months prior written notice.
8. OSI may terminate the licenses and the Services provided pursuant to
this Agreement upon thirty days written notice if, at any time, the
Company files a petition in bankruptcy or insolvency before the courts
or applies for the appointment of a receiver or trustee for all of its
assets or any part thereof, or if the Company proposes a written
agreement of consolidation or extension of debts, or if the Company is
served with an involuntary petition against it, filed in any insolvency
proceeding, and such petition is not dismissed within sixty days after
its filing, or if the Company proposes or is a party to any dissolution
or liquidation, or if the Company makes an assignment for the benefit
of creditors.
9. The parties each represents and warrants that:
a. It is an entity duly organized, validly existing and is in
good standing under the laws of its domicile, is qualified to
do business and is in good standing as a corporation in each
jurisdiction in which the conduct of its business or the
ownership of its properties requires such qualification and
has all requisite power and authority to conduct its business
as now being conducted, to own, lease and operate its
properties and to execute, deliver and perform this Agreement.
- --------------------
** This portion has been redacted pursuant to a confidential treatment
request.
-4-
<PAGE> 6
b. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action
and do not and will not (i) require any consent or approval of
its stockholders (other than that which has been obtained),
(ii) violate any provision of any law, rule, regulation, writ,
judgment, injunction, decree, determination or award presently
in effect having applicability to it or any provision of its
charter, organization agreement or by-laws or (iii) result in
a breach of or constitute a default under any material
agreement, mortgage, lease, license, permit or other
instrument or obligation to which it is a party or by which it
or its properties may be bound or affected.
c. This Agreement is a legal, valid and binding obligation of it
enforceable against it in accordance with its terms and
conditions, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws, from time to time in effect, affecting
creditor's rights generally.
10. All notices shall be mailed via certified mail, return receipt
requested, or courier addressed as follows, or to such other address as
may be designated from time to time:
If to OSI: At its address as set forth at the beginning of
this Agreement
Attn.: Arthur Bruskin, Ph.D.
Oncogene Science, Inc.
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
If to the Company: At its address as set forth at the beginning of
this Agreement
Attn.: Walter Lovenberg, Ph.D.
Helicon Therapeutics, Inc.
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
Notices shall be deemed given as of the date of receipt.
11. This Agreement shall be construed in accordance with the laws of the
State of New York.
12. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors and
permitted assigns. This Agreement may not be assigned by either party,
except that the parties may assign this Agreement and their rights and
interest, in whole or in part, to any of their affiliates, any
purchaser of all or
-5-
<PAGE> 7
substantially all of its assets or to any successor corporation
resulting from any merger or consolidation with or into such
corporation.
13. This Agreement may be amended, modified, superseded or canceled, and
any of its terms may be waived, only by a written instrument executed
by each party or, in the case of waiver, by the party or parties
waiving compliance. The delay or failure of any party at any time or
times to require performance of any provision shall in no manner affect
the rights at a later time to enforce the same.
14. No person not a party to this Agreement shall have or acquire any
rights by reason of this Agreement. Nothing contained in this Agreement
shall be deemed to constitute the parties partners with each other or
any other person or entity.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
Oncogene Science, Inc.
By: /s/
---------------------------------
Title:
--------------------------------
Helicon Therapeutics, Inc.
By: /s/
---------------------------------
Title:
--------------------------------
-6-
<PAGE> 8
SCHEDULE A
OSI SERVICES COLLABORATIVE RATE
The initial collaborative rate is $240,000 per person, per year.
-7-
<PAGE> 9
SCHEDULE B
WORK PLAN
**
- --------------------
** This portion has been redacted pursuant to a confidential treatment
request.
-8-
<PAGE> 10
EXHIBIT 1
OSI PATENT RIGHTS
**
- --------------------
** This portion has been redacted pursuant to a confidential treatment
request.
-9-
<PAGE> 1
Portions of this Exhibit 10.34 have been redacted and are the subject
of a confidential treatment request filed with the Secretary of the Securities
and Exchange Commission.
<PAGE> 2
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT, dated July 17, 1997 is entered into by
and among Helicon Therapeutics, Inc., a Delaware corporation (the "Corporation")
and those stockholders of the Corporation listed on Schedule 1 hereto
(hereinafter referred to collectively as the "Investors").
W I T N E S S E T H:
WHEREAS, the Corporation was organized to discover, develop and market
pharmaceutical products; and
WHEREAS, the Corporation and certain of the Investors entered into a
Convertible Preferred Stock Purchase Agreement dated of even date herewith (the
"Series A Stock Purchase Agreement") in connection with which the Corporation
sold shares of its Series A Convertible Preferred Stock, par value $.001 per
share, and the Corporation granted to such Investors certain registration and
other rights with respect to such shares; and
WHEREAS, OSI, in consideration of the issuance of ** shares of
Preferred Shares of the Corporation to OSI pursuant to the Series A Stock
Purchase Agreement, has contributed to the Corporation (i) ** , (ii) a
non-exclusive, royalty-free license to use screening technology (as defined
herein) and commercialize products which are the subject of an OSI patent
application covering a method of screening and modulation transcription and
(iii) ** and
WHEREAS, CSHL, in consideration of the issuance of ** shares of
Preferred Shares of the Corporation pursuant to the Series A Stock Purchase
Agreement, has contributed to the Corporation (i) an exclusive royalty free
license to commercialize technology which is the subject of a CSHL patent
application covering a method of cloning and characterizing genes associated
with long-term memory, under which CSHL shall be entitled to reimbursement from
the Corporation for patent and related expenses and (ii) ** and
WHEREAS, an aggregate of ** shares of Senior Common Stock, par value
$.001 per share, and Ordinary Common Stock, par value $.001 per share, of the
Corporation has been issued to certain CSHL individuals, as more fully set forth
on Schedule 1, subject to vesting as provided thereon; and
WHEREAS, the parties to this Agreement believe it is in their mutual
best interests to provide for continuity and harmony in the management and the
policies of the Corporation; and
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
<PAGE> 3
WHEREAS, the parties hereto, inter alia, are entering into this
Agreement for the mutual purposes of (a) providing for the management of the
Corporation and (b) providing for certain restrictions on transfer of the
Preferred Stock or Common Stock, as the case may be.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and undertakings of the Corporation and the Investors hereunder and
under the Series A Stock Purchase Agreement, as the case may be, the parties
hereto do hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have
the following respective meanings:
"Board" shall mean the Board of Directors of the Corporation.
"Budget" shall have the meaning set forth in Section 2.9 hereof.
"Certificate" shall mean the Certificate of Incorporation of the
Corporation, as filed with the Secretary of State of the State of Delaware on
July 10, 1997, as amended from time to time.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Common Stock" shall mean the Senior Common Stock, par value $.001 per
share, and Ordinary Common Stock, par value $.001 per share, of the Corporation.
"CSHL" shall mean Cold Spring Harbor Laboratory, a New York
corporation.
"Environmental Laws" shall mean all applicable federal, state and local
laws, ordinances, rules and regulations that regulate, fix liability for, or
otherwise relate to, the handling, use (including use in industrial processes,
in construction, as building materials, or otherwise), storage and disposal of
hazardous and toxic wastes and substances, and to the discharge, leakage,
presence, migration, threatened release or release (whether by disposal, a
discharge into any water source or system or into the air, or otherwise) of any
pollutant or effluent. Without limiting the preceding sentence, the term
"Environmental Laws" shall specifically include the following federal and state
laws, as amended:
FEDERAL
Comprehensive Environmental Response,
Compensation and Liability Act of 1980,
42 U.S.C. 9601 et seq.;
Resource Conservation and Recovery Act of 1976,
42 U.S.C. 6901 et seq.;
2
<PAGE> 4
Federal Water Pollution Control Act,
33 U.S.C. 1251 et seq.; and
Clean Air Act, 42 U.S.C. 7401 et seq.
STATE
NEW YORK ENVIRONMENTAL STATUTES
Environmental Conservation Law 1-0101 et seq.
"Equity Percentage" shall mean, as to any Investor, that percentage
figure which expresses the ratio that (a) the number of shares of issued and
outstanding Common Stock then owned by such Investor bears to (b) the aggregate
number of shares of issued and outstanding Common Stock then owned by all
Investors. For purposes solely of the computation set forth in clauses (a) and
(b) above, all issued and outstanding securities held by the Investors that are
convertible into or exercisable or exchangeable for shares of Common Stock
(including any issued and issuable shares of Preferred Stock) or for any such
convertible, exercisable or exchangeable securities, shall be treated as having
been so converted, exercised or exchanged at the rate or price at which such
securities are convertible, exercisable or exchangeable for shares of Common
Stock in effect at the time in question (which, for purposes of Section 2.3 of
this Agreement, shall be at the time of delivery by the Corporation of the
notice of the Offer contemplated by Section 2.3(b), whether or not such
securities are at such time immediately convertible, exercisable or
exchangeable.
"Excess Securities" shall have the meaning set forth in Section 2.3(d)
hereof.
"Excess Securities Notice" shall have the meaning set forth in Section
2.3(d) hereof.
"Excess Securities Period" shall have the meaning set forth in Section
2.3(d) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Registration Statement" shall have the meaning set forth
in Section 2.6 hereof.
"Excluded Forms" shall have the meaning given such term in Section 3.5
hereof.
"Excluded Securities" shall mean, collectively:
(i) the Reserved Shares;
(ii) Common Stock issued or issuable to officers, directors or
employees of or consultants or independent contractors to the Corporation,
pursuant to any written agreement, plan
3
<PAGE> 5
or arrangement, to purchase, or rights to subscribe for, such Common Stock, that
has been approved in form and in substance by the holders of a majority of the
voting power of the Series A Preferred Shares then outstanding;
(iii) any securities issued upon the exercise of any rights,
options or warrants to purchase such capital stock or exchange of any
convertible or exchangeable securities;
(iv) any securities issued pursuant to the acquisition of
another Corporation by the Corporation by merger or purchase of all or
substantially all assets of that corporation whereby the Corporation owns not
less than fifty-one percent (51%) of the voting power or assets of such
corporation following such merger or purchase of all or substantially all of
such corporation's assets which acquisition has been approved in accordance with
the Certificate; or
(v) any securities issued as a stock dividend or upon any
stock split or other subdivision of shares of Common Stock.
"Fixed Royalty Payments" shall mean the fixed royalty payments referred
to in the Roche Research Agreement.
"Hazardous Materials" shall include without limitation, any flammable
explosives, petroleum products, petroleum byproducts, radioactive materials,
hazardous wastes, hazardous substances, toxic substances or other similar
materials regulated by Environmental Laws.
"Investors" shall mean each of the persons listed on Schedule 1 hereto,
severally but not jointly and severally.
"Large Stockholders" shall mean (i) ** and (ii) **
"Notice of Acceptance" shall have the meaning set forth in Section
2.3(c) hereof.
"Offer" shall have the meaning set forth in Section 2.3(b) hereof.
"Offered Securities" shall mean, except for Excluded Securities, (i)
any shares of Common Stock, Preferred Stock or any other equity security of the
Corporation, (ii) any debt security or capitalized lease with any equity feature
with respect to the Corporation (except as may be issued to banks or leasing
companies in order to obtain financing or secure leases of equipment), or (iii)
any option, warrant or other right to subscribe for, purchase or otherwise
acquire any such equity security, debt security or capitalized lease (except as
may be issued to banks or leasing companies in order to obtain financing or
secure leases of equipment).
- ----------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
4
<PAGE> 6
"OSI" shall mean Oncogene Science, Inc., a Delaware corporation.
"Other Shares" shall have the meaning set forth in Section 3.5(e)
hereof.
"Preferred Shares" shall mean the Series A Preferred Shares.
"Preferred Shares Investors" shall mean Roche, OSI and CSHL.
"Preferred Stock" shall mean the Preferred Stock, par value $.001 per
share, of the Corporation.
"Property" shall include, without limitation, land, buildings and
laboratory facilities owned or leased by the Corporation or as to which the
Corporation now has any duties, responsibilities (for clean-up, remedy or
otherwise) or liabilities under any Environmental Laws, or as to which the
Corporation or any subsidiary of the Corporation may have such duties,
responsibilities or liabilities because of past acts or omissions of the
Corporation or any such subsidiary or their predecessors, or because the
Corporation or any such subsidiary or their predecessors in the past was such an
owner or operator of, or bore some other relationship with, such land, buildings
and/or laboratory facilities.
"Refused Securities" shall have the meaning set forth in Section 2.3(f)
hereof.
"Reserved Shares" shall mean the shares of Common Stock reserved by the
Corporation for issuance upon the conversion of the Series A Preferred Shares.
"Restricted Securities" shall mean any of (a) the Series A Preferred
Shares and the Common Stock issued or issuable upon the conversion of the Series
A Preferred Shares, (b) all shares of Common Stock issued or issuable in respect
thereof by way of stock splits, stock dividends, stock combinations,
recapitalizations or like occurrences, and (c) any other shares of Common Stock
or other securities of the Corporation which are convertible into or exercisable
for (i) shares of Common Stock or (ii) securities convertible into or
exercisable for shares of Common Stock (including, without limitation, other
classes or series of Convertible Preferred Stock, warrants, options or other
rights to purchase Common Stock or convertible debentures or other convertible
debt securities) and the Common Stock issued or issuable upon such conversion or
exercise of such other securities, which may be issued hereafter to any of the
Investors, have not been sold (A) in connection with an effective registration
statement filed pursuant to the Securities Act, or (B) pursuant to Rule 144 or
Rule 144A promulgated by the Commission under the Securities Act.
"Restricted Shares" shall mean the shares of Common Stock issued or
issuable upon the conversion or exchange of the Restricted Securities or
otherwise constituting a portion of the Restricted Securities.
5
<PAGE> 7
"Roche" shall mean **
"Roche Research Agreement" means the Collaborative Research and
Licensing Agreement, of even date herewith, between the Corporation and Roche.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series A Preferred Shares" shall mean shares of Series A Preferred
Stock issued pursuant to the Series A Stock Purchase Agreement.
"Series A Preferred Stock" shall mean Series A Convertible Preferred
Stock, par value $.001 per share, of the Corporation.
"Series A Stock Purchase Agreement" shall mean the Convertible
Preferred Stock Purchase Agreement, among the Corporation and certain of the
Investors listed on Schedule 1 thereto.
"Stockholders" shall mean all holders of capital stock of the
Corporation.
"Target Month" shall have the meaning set forth in Section 2.8(a)
hereof.
"Termination Date" shall have the meaning set forth in Section 5.5
hereof.
"30-Day Period" shall have the meaning set forth in Section 2.3(b)
hereof.
"Transfer" shall include any disposition of any Restricted Securities
or of any interest therein which would constitute a sale thereof within the
meaning of the Securities Act.
SECTION 2. Certain Covenants of the Corporation.
2.1 Meetings of the Board of Directors. The Corporation shall call, and
use its best efforts to have, regular meetings of the Board not less often than
quarterly. The Corporation shall pay all reasonable and appropriately documented
travel expenses and other out-of-pocket expenses incurred by directors who are
not employed by the Corporation in connection with attendance at meetings to
transact the business of the Corporation or attendance at meetings of the Board
or any committee thereof.
2.2 Reservation of Shares of Common Stock and Preferred Stock, Etc. The
Corporation shall at all times have authorized and reserved out of its
authorized but unissued shares of Common Stock, a sufficient number of shares of
Common Stock to provide for the conversion
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
6
<PAGE> 8
of the Series A Preferred Shares. Neither the issuance of the Series A Preferred
shares, nor the shares of Common Stock issuable upon the conversion of the
Series A Preferred Shares, shall be subject to a preemptive right of any other
Stockholder.
2.3 Right of First Refusal.
(a) The Corporation shall not issue, sell or exchange, agree to issue,
sell or exchange, or reserve or set aside for issuance, sale or exchange, any
Offered Securities unless in each case the Corporation shall have first offered
to sell to the Preferred Shares Investors all of such Offered Securities on the
terms set forth herein. Each Preferred Shares Investor shall be entitled to
purchase up to its pro rata share of the Offered Securities based upon its
relative Equity Percentage (the "Equity Percentage").
(b) The Corporation shall deliver to each Preferred Shares Investor
written notice of the offer to sell the Offered Securities, specifying the price
and terms and conditions of the offer (the "Offer"). The Offer by its terms
shall remain open and irrevocable for a period of 30 days from the date of its
delivery to such Preferred Shares Investor (the "30-Day Period"), subject to
extension to include the Excess Securities Period (as such term is hereinafter
defined).
(c) Each Preferred Shares Investor shall evidence its intention to
accept the Offer by delivering a written notice signed by the Preferred Shares
Investor setting forth the number of shares that the Preferred Shares Investor
elects to purchase (the "Notice of Acceptance"). The Notice of Acceptance must
be delivered to the Corporation prior to the end of the 30-Day Period.
(d) If any Preferred Shares Investor fails to exercise its right
hereunder to purchase its Equity Percentage of the Offered Securities, the
Corporation shall so notify the other Preferred Shares Investors in a written
notice (the "Excess Securities Notice"). The Excess Securities Notice shall be
given once by the Corporation with respect to all Preferred Shares Investors
promptly after it learns of the intention of one or more Preferred Shares
Investors not to purchase all of its or their Equity Percentage of the Offered
Securities, but in no event later than ten (10) days after the expiration of the
30-Day Period. The Preferred Shares Investors who or which have agreed to
purchase their Equity Percentage of the Offered Securities shall have the right
to purchase the portion not purchased by such other Preferred Shares Investors
(the "Excess Securities"), in amounts based on the relative stock ownership in
the Corporation of each purchasing Preferred Shares Investor, by giving written
notice within ten (10) days after receipt of the Excess Securities Notice from
the Corporation. The twenty (20) day period during which (i) the Corporation
must give the Excess Securities Notice to the other Preferred Shares Investors,
and (ii) each of the other Preferred Shares Investors must give the Corporation
notice of its intention to purchase all or any portion of its pro rata share of
the Excess Securities, is hereinafter referred to as the "Excess Securities
Period."
(e) If the Preferred Shares Investors tender their Notice of Acceptance
prior to the end of the 30-Day Period indicating their intention to purchase all
of the Offered Securities or, if prior to the termination of the Excess
Securities Period, the Preferred Shares Investors tender Excess Securities
Notices to purchase all of the Excess Securities, the Corporation shall schedule
a
7
<PAGE> 9
closing of the sale of all such Offered Securities. Upon the closing of the sale
of the Offered Securities to be purchased by the Preferred Shares Investors,
each Preferred Shares Investor shall (i) purchase from the Corporation that
portion of the Offered Securities (including the Excess Securities) for which it
tendered a Notice of Acceptance and an Excess Securities Notice, if applicable,
upon the terms specified in the Offer, and (ii) execute and deliver an agreement
further restricting transfer of such Offered Securities substantially as set
forth in Section 3.1, 3.2 and 3.3 of this Agreement. In addition, with respect
to the Offered Securities being purchased by the Preferred Shares Investors, the
Corporation shall provide each such Preferred Shares Investor with the rights
and benefits set forth in this Agreement. The obligation of the Preferred Shares
Investors to purchase such Offered Securities is further conditioned upon the
preparation of a purchase agreement embodying the terms of the Offer, which
shall be reasonably satisfactory in form and substance to such Preferred Shares
Investor and the Preferred Shares Investor's counsel.
(f) The Corporation shall have ninety (90) days from the expiration of
the 30-Day Period, or the Excess Securities Period, if applicable, to sell the
Offered Securities (including the Excess Securities) refused by the Preferred
Shares Investors (the "Refused Securities") to any other person or persons, but
only upon terms and conditions which are in all material respects (including,
without limitation, price and interest rate) no more favorable to such other
person or persons, and no less favorable to the Corporation, than those set
forth in the Offer. Upon and subject to the closing of the sale of all of the
Refused Securities (which shall include full payment to the Corporation), each
Preferred Shares Investor shall (i) purchase from the Corporation those Offered
Securities (including the Excess Securities) for which it tendered a Notice of
Acceptance and an Excess Securities Notice, if applicable, upon the terms
specified in the Offer, and (ii) execute and deliver an agreement restricting
transfer of such Offered Securities (including the Excess Securities)
substantially as set forth in Sections 3.1, 3.2 and 3.3 of this Agreement. In
addition, with respect to the Offered Securities being purchased by the
Preferred Shares Investors, the Corporation shall provide each such Preferred
Shares Investor with the rights and benefits set forth in this Agreement. The
obligation of the Preferred Shares Investor to purchase such Offered Securities
(including the Excess Securities) is further conditioned upon the preparation of
a purchase agreement embodying the terms of the Offer, which shall be reasonably
satisfactory in form and substance to such Preferred Shares Investor and the
Preferred Shares Investor's counsel. The Corporation shall not make any purchase
of Offered Securities utilizing the funds of the Corporation.
(g) In each case, any Offered Securities not purchased either by the
Preferred Shares Investors or by any other person in accordance with this
Section 2.3 may not be sold or otherwise disposed of until they are again
offered to the Preferred Shares Investors under the procedures specified in
Paragraphs (a), (b), (c), (d), (e) and (f) hereof.
(h) Each Preferred Shares Investor may, by prior written consent, waive
its rights under this Section 2.3. Such a waiver shall be deemed a limited
waiver and shall only apply to the extent specifically set forth in the written
consent of such Preferred Shares Investor.
8
<PAGE> 10
2.4 Purchase of Common Stock or Other Securities. Roche shall have the
right to purchase additional shares of Common Stock or other securities (as
provided below, if an initial public offering of any securities of the
Corporation has not yet taken place) within sixty (60) days of its making of
each Fixed Royalty Payment pursuant to the Collaboration Agreement between it
and the Corporation.
The number of such new shares shall equal the Fixed Royalty
Payment divided by (a) if prior to the Termination Date, the lowest price per
share at which the Corporation issued shares of Common Stock or other securities
(based in good faith on the convertibility of such other securities into Common
Stock) within the six (6) months prior to the purchase by Roche (or within the
twelve (12) months prior to the purchase by Roche if no shares of Common Stock
or other securities (if an initial public offering of any securities of the
Corporation has not yet taken place) were issued within such six (6) month
period; or if no shares of Common Stock or other securities (if an initial
public offering of any securities of the Corporation has not yet taken place)
were issued within such twelve (12) month period, the fair market value of the
shares of Common Stock or other securities (if an initial public offering of any
securities of the Corporation has not yet taken place) as determined in good
faith by the Board of Directors) (excluding any Excluded Securities) and (b) if
after the Termination Date, ** of the market price of Common Stock for
investment at the time of the Fixed Royalty Payment.
"Market price" per share of Common Stock shall be deemed to be
the average of the daily closing prices for the thirty (30) consecutive trading
days immediately preceding the Fixed Royalty Payment date and the closing price
for each day shall be the last reported sales price regular way or, in case no
such reported sale takes place on such day, the closing bid price regular way,
in either case on the principal national securities exchange (including, for
purposes hereof, the NASDAQ National Market System) on which the Common Stock is
listed or admitted to trading or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, the highest reported bid price
for the Common Stock as furnished by the National Association of Securities
Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is no longer
reporting such information. If on any such date the Common Stock is not listed
or admitted to trading on any national securities exchange and is not quoted by
NASDAQ or any similar organization, the fair value of a share of Common Stock on
such date, as determined in good faith by the Board of Directors of the
Corporation, whose determination shall be conclusive absent manifest error,
shall be used.
Upon any such sale to Roche, each other Preferred Shares
Investor shall have the right to proportionally increase its percentage of the
outstanding capital stock, pari passu with Roche's proportional increase in its
percentage of the outstanding capital stock, by subscribing for and purchasing
such number of additional shares of Common Stock or other securities at the
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
9
<PAGE> 11
same price as paid by Roche as is necessary to proportionally increase the
percentage of outstanding shares of capital stock owned by such other Preferred
Shares Investor immediately prior to the sale to Roche by the same proportional
increase in Roche's percentage of outstanding shares of capital stock as a
result of the sale to Roche.
Roche's right to purchase additional shares of Common Stock
shall expire only upon the expiration of its Collaboration Agreement entered
into as of July 1, 1997 with Hoffman-La Roche Inc.
2.5 Negative Covenants.
(a) Required Approvals. The Corporation shall not, directly or
indirectly, take any of the actions specified in Article III, Section A.5(c) of
the Certificate without the prior written consent or vote of the holders of
seventy percent (70%) of the then outstanding Preferred Shares, determined in
accordance with Section A.5(a) of the Certificate. In addition, the Corporation
shall not, directly or indirectly, take any of the actions specified in Article
V, Section A.2 of the Certificate without the written approval of the Board,
including Series A Preferred Directors as that term is used in the Certificate.
(b) Stock and Option Agreements. Without the prior written consent or
vote of the holders of a majority of the then outstanding Preferred Shares,
determined in accordance with Section A.5(a) of Article III of the Certificate
(including, in such calculation, any outstanding Restricted Shares held by such
holders), the Corporation shall not issue any shares of Common Stock or options,
warrants or other rights to acquire Common Stock or other securities of the
Corporation to any employee, officer, director, consultant, independent
contractor or other person or entity except for Excluded Securities.
(c) Registration Rights. The Corporation shall not hereafter grant to
any persons any rights to register or qualify stock of the Corporation under
federal or state securities laws, unless it shall have first obtained the
written consent of the holders of a majority of the voting power of the
Preferred Shares then outstanding, determined in accordance with Section A.5(a)
of Article III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such holders).
2.6 Filing of Reports Under the Exchange Act.
The Corporation shall give prompt notice to the holders of Preferred
Shares, and ** of (i) the filing of any registration statement or other
appropriate approved form (an "Exchange Act Registration Statement") pursuant to
the Exchange Act, relating to any class of equity securities of the Corporation,
(ii) the effectiveness of such Exchange Act Registration Statement, and (iii)
the number of shares of such class of equity securities outstanding, as reported
in such Exchange Act Registration Statement, in order to enable the Investors to
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
10
<PAGE> 12
comply with any reporting requirements under the Exchange Act or the Securities
Act. Upon the written request of a majority in interest of the holders of
Preferred Shares, the Corporation shall, at any time after the Corporation has
registered any shares of Common Stock under the Securities Act, file an Exchange
Act Registration Statement relating to any class of equity securities of the
Corporation then held by the holders of Preferred Shares or issuable upon
conversion or exercise of any class of debt or equity securities or warrants or
options of the Corporation then held by the Investors, whether or not the class
of equity securities with respect to which such request is made shall be held by
the number of persons which would require the filing of a registration statement
under Section 12(g)(1) of the Exchange Act.
(a) If the Corporation shall have filed an Exchange Act Registration
Statement or a registration statement (including an offering circular under
Regulation A promulgated under the Securities Act) pursuant to the requirements
of the Securities Act, which shall have become effective (and in any event, at
all times following the initial public offering of any of the securities of the
Corporation), then the Corporation shall comply with all of the reporting
requirements of the Exchange Act (whether or not it shall be required to do so)
and shall comply with all other public information reporting requirements of the
Commission as a condition to the availability of an exemption from the
Securities Act for the sale of any of the Restricted Securities by any holder of
Restricted Securities (including any such exemption pursuant to Rule 144 or Rule
144A thereof, as amended from time to time, or any successor rule thereto or
otherwise).
The Corporation shall cooperate with each holder of Restricted
Securities in supplying such information as may be necessary for such holder of
Restricted Securities to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act (under Rule 144 or Rule
144A thereunder or otherwise) for the sale of any of the Restricted Securities
by any holder of Restricted Securities. In particular, the Corporation shall
furnish to any holder of Restricted Securities upon request, (i) a written
statement by the Corporation as to its compliance with the reporting
requirements of Rule 144 (at any time after 90 days after the effective date of
the Exchange Act Registration Statement), the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements) or
as to whether it qualifies as a registrant whose securities may be sold on a
registration statement on Form S-3, and (ii) a copy of the most recent annual or
quarterly report of the Corporation and such other reports and documents filed
by the Corporation with the Commission.
2.7 Access to Records. The Corporation shall afford to each of the
Investors and such Investor's employees, counsel and other authorized
representatives, free and full access, at all reasonable times and for
reasonable periods of time, to all of the books, records and properties of the
Corporation and to all officers of the Corporation, subject to the limitations
set in Section 2.16.
2.8 Financial Reports. Until such time that the Corporation has a class
of its equity securities registered under the Exchange Act and is required to
file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act,
except with respect to the obligation set forth in
11
<PAGE> 13
Section 2.8(e) hereunder which shall survive such time, the Corporation shall
furnish each of the Investors with the financial information described below,
subject to the limitations set forth in Section 2.16 below:
(a) Upon receipt of a request from any of the Large Stockholders prior
to the end of a monthly accounting period, the Corporation shall deliver to such
Large Stockholders, within 30 days after the last day of each month (the "Target
Month") (or such other calendar period as is approved by the Board), unaudited
financial statements, including a balance sheet as of the last date of such
Target Month, a statement of income (or monthly operating expenses) for such
month, together with a cumulative statement of income from the first day of the
current year to the last day of such month, which statements shall be prepared
from the books and records of the Corporation, a cash flow analysis, together
with cumulative cash flow analyses from the first day of the current year to the
last day of such month, and a comparison between the actual monthly operating
expenses and the projected figures for such month and the comparable figures for
the prior year, subject to the provisions of Section 2.9 hereof.
(b) Upon receipt of a request from any of the Investors prior to the
end of a quarterly accounting period, the Corporation shall deliver to such
Investors, within 45 days after the end of such quarterly accounting period,
unaudited financial statements for such quarterly account period, certified by
the Chief Financial Officer or the Treasurer of the Corporation, as presenting
fairly the financial condition and results of operations of the Corporation and
as having been prepared on a basis consistent with the accounting principles
reflected in the Corporation's annual audited financial statements, accompanied
by a report, signed by the Chief Financial Officer or the Treasurer of the
Corporation, summarizing the operating and financial highlights of the
Corporation for such quarterly accounting period, which report shall include (a)
a comparison between the actual quarterly operating and financial results, the
Budget (as defined in Section 2.9 hereof) and the results of the similar
quarterly accounting period for the prior fiscal year of the Corporation,
together with an explanation of material variances from the Budget and such
similar quarterly accounting period, as the case may be, and (b) a narrative
analysis of operations and trends in the business of the Corporation during such
quarterly accounting period.
(c) Within 120 days after the end of each fiscal year of the
Corporation, audited financial statements of the Corporation, which shall
include an income statement and a statement of cash flow for such fiscal year
and a balance sheet as of the last day thereof, each prepared in accordance with
generally accepted accounting principles consistently applied, and accompanied
by the report of such independent certified public accountants as shall have
been approved by the Board.
(d) If for any period the Corporation shall have any subsidiary or
subsidiaries whose accounts are consolidated with those of the Corporation, then
the financial statements delivered for such period pursuant to paragraphs (a),
(b) and (c) of this Section 2.8 shall be the consolidated and consolidating
financial statements of the Corporation for all such consolidated subsidiaries.
12
<PAGE> 14
(e) Promptly upon becoming available:
(i) copies of all financial statements, reports, press
releases, notices, proxy statements and other documents sent by the Corporation
to its Stockholders or released to the public and copies of all regular and
periodic reports, if any, filed by the Corporation with the Commission or any
securities exchange or self-regulatory organization; and
(ii) any other financial or other information available to
management of the Corporation that any of the Investors shall have reasonably
requested on a timely basis.
2.9 Budget and Operating Forecast. The Corporation shall prepare and
submit to the Board and each of the Investors an operating plan with quarterly
breakdowns (the "Budget") for each fiscal year at least 45 days prior to the
beginning of each fiscal year of the Corporation. The Budget shall be deemed
accepted as the Budget for such fiscal year only when it has been approved by
the Board. The Budget shall be reviewed by the Corporation periodically and all
changes therein, and all material deviations therefrom, shall be reviewed by the
Board on at least a quarterly basis.
2.10 System of Accounting. The Corporation shall maintain, and cause
each of its subsidiaries, when and if any shall exist, to maintain, its books of
accounts, related records and system of accounting in accordance with good
business practices and generally accepted accounting principles, and shall cause
the matters contained therein to be appropriately and accurately reflected in
the financial reports (which shall be prepared in accordance with generally
accepted accounting principles) furnished pursuant to this Agreement.
2.11 Restriction on Transfer Rights; Confidentiality. The rights
granted to each of the Investors pursuant to Sections 2.7 through 2.9 hereof
shall not be transferred or assigned by any Investor to, and shall not inure to
the benefit of, any successor, transferee or assignee of any Investor, which is
engaged in any line of business directly competitive with the Corporation;
provided that such prohibition shall not apply to any transfer or assignment to
any successor, transferee or assignee of any Investor which is an affiliate of
such Investor, including any trusts of which the Investor is the settlor or any
family member of such Investor. Each Investor shall hold in confidence the terms
of this Agreement, and all information regarding the Corporation which such
Investor receives pursuant to this Agreement, unless such information has
already been disclosed to the public or as otherwise required by law.
2.12 Confidentiality and Non-Competition Agreements for Key Employees.
Subject to the rules of the Cold Spring Harbor Laboratories, the Corporation
shall cause each person who is presently an employee of or a consultant or
independent contractor to the Corporation or who becomes an employee of or a
consultant to the Corporation subsequent to the date hereof and who shall have
or be proposed to have access to confidential or proprietary information of the
Corporation to execute a confidentiality and non-competition agreement in form
and substance attached hereto or otherwise approved by the Board prior to the
commencement of such person's employment by the Corporation in such capacity.
13
<PAGE> 15
2.13 Stock Restriction Acknowledged by Directors, Officers, Employees
and Consultants who are or become Stockholders. The Corporation shall cause each
of its directors, officers, employees consultants or independent contractors who
own any shares of capital stock of the Corporation, or has been issued any
options, warrants or other rights to purchase any shares of such capital stock,
or who may own in the future any such shares, or options, warrants or other
rights to purchase any shares of such capital stock, or who may own in the
future any such shares, or options, warrants or other rights to purchase such
shares, in each case other than Refused Securities purchased in accordance with
Section 2.3(f) hereof, to execute an acknowledgment that they are aware of and
understand the restrictions on the transfer of such shares, under the
Certificate of Incorporation of the Corporation, this Stockholders' Agreement
and any other contractual agreement to which they are a party, prior and as a
condition to the acquisition of such shares, or options, warrants or rights, by
such person.
2.14 Marketing and Promotional Material. Each of the Investors will
have the right to review and approve, in advance of publication, distribution or
dissemination, any reference to such Investor or any entity affiliated with such
Investor (other than the Corporation), contained in any document, instrument,
report or filing or in any advertising, marketing, promotional and similar
materials.
2.15 Environmental Matters. The Corporation shall promptly advise the
Investors in writing of any pending or threatened claim, demand or action by any
governmental authority or third party relating to any Hazardous Materials
affecting the Property of which it has knowledge. The Corporation shall not
discharge, place, release, spill or dispose of any Hazardous Materials or any
other pollutants or effluents upon the Property or elsewhere (including, but not
limited to, underground injection of such substances), and the Corporation shall
not discharge into the air any emission which would require a permit under the
Clean Air Act or its state counterparts or any other Environmental Laws, except
in compliance with the Environmental Laws. The Stockholders of the Corporation
shall have no control over, or authority with respect to, the waste disposal
operations of the Corporation.
The Corporation hereby indemnifies, defends and holds harmless
the Investors from and against any and all manner of actions, causes of action,
suits, debts, accounts, controversies, judgments, claims, demands, losses or
liabilities of any nature (including reasonable attorneys' fees) directly or
indirectly arising out of or attributable to (a) any misrepresentation or breach
of the representations and covenants set forth in Section 5.17 of the Stock
Purchase Agreement, or (b) the use, generation, storage, release, threatened
release, discharge, disposal or presence of Hazardous Materials on, under or
about the Property by any person during the period that the Corporation was the
legal or equitable owner of the Property or which occurred prior to such time
and was otherwise actually known by, or should have been known by, the
Corporation. The obligation of the Corporation to indemnify the Investors shall
specifically cover and include, without limitation, all fines and penalties
imposed by federal, state or local authorities, costs of removing or
neutralizing the Hazardous Materials, injury to the property adjoining the
Property, injury to persons living or working on or about the Property or
adjoining or otherwise affecting property, and all other indirect or
consequential damages incurred by the Investors.
14
<PAGE> 16
2.16 Limitations and Roche Rights. Notwithstanding the provisions of
Sections 2.7, and 2.8(e)(ii), the Corporation shall not be required to provide
Roche with access to information set forth in such Sections (a) to the extent
that the Board of Directors determines in good faith that the Corporation and
Roche, as the case may be, have conflicting interests relating to such
information, or (b) to the extent that such information relates to potential or
actual licensing, development, joint venture or similar transactions between the
Corporation and a third party; provided that the Corporation shall act
reasonably in determining whether to provide such access to information.
2.17 Duration of Section. With the exception of Section 2.4, this
Section 2 and the rights and obligations of the parties hereunder shall
automatically terminate on the consummation of a firm commitment underwritten
public offering of Common Stock registered under the Securities Act pursuant to
which (X) Common Stock is offered to the public at a price of at least ** per
share (subject to adjustment for stock splits, stock dividends, stock
combinations, recapitalizations and like occurrences) and (Y) the net proceeds
to the Corporation are at least ** (the "Termination Date"). Prior to the
Termination Date the rights and obligations of any Investor under this Section 2
shall terminate upon the date on which such Investor no longer owns any
Preferred Shares or Common Stock.
SECTION 3. TRANSFER OF SECURITIES.
3.1 Restriction on Transfer. The Restricted Securities shall not be
transferable, except upon the conditions specified in this Section 3, which
conditions are intended solely to ensure compliance with the provisions of the
Securities Act in respect of the Transfer thereof.
3.2 Restrictive Legend. Each certificate evidencing any Restricted
Securities and each certificate evidencing any such securities issued to
subsequent transferees of any Restricted Securities shall (unless otherwise
permitted by the provisions of Section 3.3 or 3.10 hereof) be stamped or
otherwise imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAW. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD
OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES
LAW OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAW. ADDITIONALLY, THE TRANSFER
OF THESE SECURITIES IS SUBJECT TO THE
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
15
<PAGE> 17
CONDITIONS SPECIFIED IN A STOCKHOLDERS' AGREEMENT DATED JUNE 1, 1997, AMONG THE
CORPORATION AND CERTAIN OTHER SIGNATORIES THERETO, AND NO TRANSFER OF SUCH
SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION.
3.3 Notice of Transfer. By acceptance of any Restricted Securities, the
holder thereof agrees to give prior written notice to the Corporation of such
holder's intention to effect any Transfer and to comply in all other respects
with the provisions of this Section 3.3.
Each such notice shall describe the manner and circumstances
of the proposed Transfer and shall be accompanied by:
(a) the written opinion of counsel for the holder of such Restricted
Securities, or, at such holder's option, a representation letter of such holder,
addressed to the Corporation (which opinion of counsel, or representation
letter, as the case may be, shall be reasonably acceptable to the Corporation),
as to whether, in the case of a written opinion, in the opinion of such counsel,
such proposed Transfer involves a transaction requiring registration of such
Restricted Securities under the Securities Act and applicable state securities
laws or an exemption thereunder is available, or, in the case of a
representation letter, such letter sets forth a factual basis for concluding
that such proposed transfer involves a transaction requiring registration of
such Restricted Securities under the Securities Act and applicable state
securities laws or that an exemption thereunder is available; or
(b) if such registration is required and if the provisions of Section
3.4 hereof are applicable, a written request addressed to the Corporation by the
holder of such Restricted Shares pursuant to the terms and provisions of Section
3.4 hereof;
provided, however, that in the case of any holder of Restricted Securities that
is a partnership, no such opinion of counsel or representation letter of the
holder shall be necessary for a Transfer by such holder to a partner of such
holder, or a retired partner if, with respect to such Transfer by a partnership,
(i) such Transfer is made in accordance with the partnership agreement of such
partnership, and (ii) the transferee agrees in writing to be subject to the
terms of Sections 3.1, 3.2, 3.3 and 3.10 hereof to the same extent as if such
transferee were originally a signatory to this Agreement.
If in such opinion of counsel or as reasonably concluded from
the facts set forth in the representation letter of the holder (which opinion
and counsel, or representation letter, as the case may be, shall be reasonably
acceptable to the Corporation), the proposed Transfer may be effected without
registration under the Securities Act and any applicable state securities laws
or "blue sky" laws, then the holder of Restricted Securities shall thereupon be
entitled to effect such Transfer in accordance with the terms of the notice
delivered by it to the Corporation.
16
<PAGE> 18
Each certificate or other instrument evidencing the securities
issued upon such Transfer (and each certificate or other instrument evidencing
any such securities not Transferred) shall bear the legend set forth in Section
3.2 hereof unless:
(a) in such opinion of such counsel or as can be concluded
from the representation letter of such holder (which opinion and counsel or
representation letter shall be reasonably acceptable to the Corporation) the
registration of future Transfers is not required by the applicable provisions of
the Securities Act and state securities laws, or
(b) the Corporation shall have waived the requirement of such
legend; provided, however, that such legend shall not be required on any
certificate or other instrument evidencing the securities issued upon such
Transfer in the event such Transfer shall be made in compliance with the
requirements of Rule 144 (as amended from time to time or any similar or
successor rule) promulgated under the Securities Act.
The holder of Restricted Securities shall not effect any
Transfer until such opinion of counsel or representation letter of such holder
has been given to and accepted by the Corporation (unless waived by the
Corporation), which acceptance shall not be unreasonably withheld, or until
registration of the Restricted Shares involved in the above-mentioned request
has become effective under the Securities Act. In the event that an opinion of
counsel is required by the registrar or transfer agent of the Corporation to
effect a transfer of Restricted Securities in the future, the Corporation shall
seek and obtain such opinion from its counsel, and the holder of such Restricted
Securities shall provide such reasonable assistance as is requested by the
Corporation (other than the furnishing of an opinion of counsel) to satisfy the
requirements of the registrar or transfer agent to effectuate such transfer.
3.4 Required Registration. If the Corporation shall be requested (i) by
holders of at least ** of the outstanding Restricted Securities (based on the
underlying Common Stock for which the Restricted Securities are convertible or
exercisable) to effect the registration under the Securities Act of Restricted
Shares, or (ii) after the first registration pursuant to this Section 3.4, by
one or more of the holders of Restricted Securities to effect the registration
under the Securities Act of Restricted Shares having a proposed aggregate
offering price equal to or greater than ** then the Corporation shall promptly
give written notice of such proposed registration to all holders of Restricted
Securities, and thereupon the Corporation shall promptly use its best efforts to
effect the registration under the Securities Act of the Restricted Shares that
the Corporation has been requested to register for disposition as described in
the request of such holders of Restricted Securities and in any response
received from any of the holders of Restricted Securities within 30 days after
the giving of the written notice by the Corporation; provided, however, that the
Corporation shall not be obligated to effect any registration under the
Securities Act except in accordance with the following provisions and Section
3.6:
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
17
<PAGE> 19
(a) Subject to Section 3.6, the Corporation shall not be
obligated to file and cause to become effective more than two (2) registration
statements requested by Roche, in which Restricted Shares are registered under
the Securities Act pursuant to this Section 3.4, if all of the Restricted Shares
offered pursuant to such registration statements are sold thereunder upon the
price and terms offered.
(b) Notwithstanding the foregoing, the Corporation may include
in each such registration requested pursuant to this Section 3.4 any authorized
but unissued shares of Common Stock (or authorized treasury shares) for sale by
the Corporation or any issued and outstanding shares of Common Stock for sale by
others; provided, however, that, if the number of shares of Common Stock so
included pursuant to this clause (b) exceeds the number of Restricted Shares
requested by the holders of Restricted Shares requesting such registration, then
such registration shall be deemed to be a registration in accordance with and
pursuant to Section 3.5; and provided further, however, that the inclusion of
such previously authorized but unissued shares by the Corporation or issued and
outstanding shares of Common Stock by others in such registration does not
adversely affect, in the sole opinion of the holders of Restricted Securities
requesting such registration, the ability of the holders of Restricted
Securities requesting such registration to market the entire number of
Restricted Shares requested by them.
3.5 Piggyback Registration.
(a) Each time the Corporation proposes for any reason to register any
of its securities under the Securities Act, other than pursuant to a
registration statement on Form S-4 or Form S-8 or similar or successor forms
(collectively, "Excluded Forms"), the Corporation shall promptly give written
notice of such proposed registration to all holders of Restricted Securities,
which shall offer such holders the right to request inclusion of any Restricted
Shares in the proposed registration.
(b) Each holder of Restricted Securities shall have 30 days from the
receipt of such notice to deliver to the Corporation a written request
specifying the number of Restricted Shares such holder intends to sell and the
holder's intended method of disposition.
(c) In the event that the proposed registration by the Corporation is,
in whole or in part, an underwritten public offering of securities of the
Corporation, any request under section 3.5(b) may specify that the Restricted
Shares by included in the underwriting (i) on the same terms and conditions as
the shares of Common Stock, if any, otherwise being sold through underwriters
under such registration, or (ii) on terms and conditions comparable to those
normally applicable to offerings of common stock in reasonably similar
circumstances in the event that no shares of Common Stock other than Restricted
Shares are being sold through underwriters under such registration.
(d) Upon receipt of a written request pursuant to Section 3.5(b), the
Corporation shall promptly use its best efforts to cause all such Restricted
Shares to be registered under the Securities Act, to the extent required to
permit sale or disposition as set forth in the written request.
18
<PAGE> 20
(e) Notwithstanding the foregoing, if the managing underwriter of any
such proposed registration determines and advises in writing that the inclusion
of all Restricted Shares proposed by the holders thereof to be included in the
underwritten public offering, together with any other issued and outstanding
shares of Common Stock proposed to be included therein by holders other than the
holders of Restricted Securities (such other shares hereinafter collectively
referred to as the "Other Shares"), would materially interfere with the
successful marketing of the Corporation's securities, then the total number of
such securities proposed to be included in such underwritten public offering
shall be reduced, (i) first by the shares requested to be included in such
registration by the holders of Other Shares, and (ii) second, if necessary, (A)
one-half (1/2) by the securities proposed to be issued by the Corporation, and
(B) one-half (1/2) by the Restricted Shares proposed to be included in such
registration by the holders thereof, on a pro rata basis, based upon the number
of Restricted Shares sought to be registered by each such holder. The shares of
Common Stock that are excluded from the underwritten public offering pursuant to
the preceding sentence shall be withheld from the market by the holders thereof
for a period, not to exceed 180 days from the closing of such underwritten
public offering, that the managing underwriter reasonably determines as
necessary in order to effect such underwritten public offering.
3.6 Registrations on Form S-2 and S-3. At such time as the Corporation
shall have qualified for the use of Form S-2 or Form S-3 (or any successor form
promulgated under the Securities Act), each holder of Restricted Securities
shall have the right to request in writing an unlimited number (but not more
than two (2) annually) of registrations on Form S-2 or Form S-3. Each such
request by a holder shall: (a) specify the number of Restricted Shares which the
holder intends to sell or dispose of, (b) state the intended method by which the
holder intends to sell or dispose of such Restricted Shares, and (c) request
registration of Restricted Shares having a proposed aggregate offering price of
at least ** . Upon receipt of a request pursuant to this Section 3.6, the
Corporation shall use its best efforts to effect such registration or
registrations on Form S-2 or Form S-3.
3.7 Preparation and Filing. If and whenever the Corporation is under an
obligation pursuant to the provision of this Section 3 to use its best efforts
to effect the registration of any Restricted Shares, the Corporation shall, as
expeditiously as practicable:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective in accordance with Section 3.7(b)
hereof;
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
19
<PAGE> 21
(b) prepare and file with the Commission 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
until the earlier of (i) the sale of all Restricted Shares covered hereby or
(ii) nine months, and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of all Restricted Shares covered by
such registration statement;
(c) furnish to each holder whose Restricted Shares are being registered
pursuant to this Section 3 such number of copies of any summary prospectus or
other prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such holder may
reasonably request in order to facilitate the public sale or other disposition
of such Restricted Shares;
(d) use its best efforts to register or qualify the Restricted Shares
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as each holder whose Restricted Shares are being registered
pursuant to this Section 3 shall reasonably request and do any and all other
acts or things which may be necessary or advisable to enable such holder to
consummate the public sale or other disposition in such jurisdictions of such
Restricted Shares; provided, however, that the Corporation shall not be required
to consent to general service of process for all purpose in any jurisdiction
where it is not then subject to process, qualify to do business as a foreign
corporation where it would not be otherwise required to qualify or submit to
liability for state or local taxes where it is not otherwise liable for such
taxes;
(e) at any time when a prospectus covered by such registration
statement and relating thereto is required to be delivered under the Securities
Act within the appropriate period mentioned in Section 3.7(b) hereof, notify
each holder whose Restricted Shares are being registered pursuant to this
Section 3 of the happening of any event as a result of which the prospectus
included in such registration, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing and, at the request of such holder, prepare,
file and furnish to such holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(f) if the Corporation has delivered preliminary or final prospectuses
to the holders of Restricted Shares that are being registered pursuant to this
Section 3 and after having done so the prospectus is amended to comply with the
requirements of the Securities Act, the Corporation shall promptly notify such
holders and, if requested, such holders shall immediately cease making offers of
Restricted Shares and return all prospectuses to the Corporation. The
Corporation shall promptly provide such holders with revised prospectuses and,
following receipt of the revised prospectuses, such holders shall be free to
resume making offers of the Restricted Shares; and
20
<PAGE> 22
(g) furnish, at the request of any holder whose Restricted Shares are
being registered pursuant to this Section 3, on the date that such Restricted
Shares are delivered to the underwriters for sale in connection with a
registration pursuant to this Section 3, if such securities are being sold
through underwriters, or, on the date that the registration statement with
respect to such securities becomes effective, if such securities are not being
sold through underwriters, (i) an opinion, dated such date, of the counsel
representing the Corporation for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the holder or holders
making such request, and (ii) a letter dated such date, from the independent
certified public accountants of the Corporation, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering , addressed to the underwriters, if any, and to
the holder or holders making such request.
3.8 Expenses. The Corporation shall pay all expenses incurred by the
Corporation in complying with the Section 3, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
National Association of Securities Dealers, Inc.), fees and expenses of
complying with the securities and blue sky laws of all such jurisdictions in
which the Restricted Shares are proposed to be offered and sold, printing
expenses and fees and disbursements of counsel (including with respect to each
registration effected pursuant to Sections 3.4, 3.5 and 3.6, the reasonable fees
and disbursements of counsel for the holders of Restricted Shares that are being
registered pursuant to this Section 3); provided, however, that all underwriting
discounts and selling commissions applicable to the Restricted Shares covered by
registrations effected pursuant to Section 3.4, 3.5 or 3.6 hereof shall be borne
by the seller or sellers thereof, in proportion to the number of Restricted
Shares sold by each such seller or sellers.
3.9 Indemnification.
(a) Indemnity by the Corporation. In the event of any registration
under the Securities Act of any Restricted Shares pursuant to this Section 3 or
otherwise, or registration or qualification of any Restricted Shares pursuant to
Section 3.7(d) hereof, the Corporation shall:
(i) indemnify and hold harmless any seller of such shares (the
"Seller"), any underwriter, any officer, director, employee or agent of any
Seller or underwriter, and each other person or entity, if any, who controls any
Seller or underwriter within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several ("Claims"),
to which each such indemnified party may become subject, under the Securities
Act or otherwise, insofar as any Claims (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or preliminary prospectus
(if used prior to the effective date of the registration statement) or summary
or final prospectus or any amendment or supplement thereto (if used during the
period the Corporation is required to keep the registration statement current)
or any document filed under a state securities or blue sky law (collectively,
"Registration Documents") or insofar as any Claims (or actions in respect
thereof) arise out of or are based upon the omission or alleged omission to
state in any Registration Document a material fact required to be
21
<PAGE> 23
stated therein or necessary to make the statements made therein not misleading
or insofar as any Claims (or actions in respect thereof) arise out of or are
based upon any violation by the Corporation of any Federal, state or common law
rule or regulation applicable to the Corporation; and
(ii) reimburse each indemnified party for all legal or other
expenses reasonably incurred by it in connection with investigating or defending
any Claim or action, including any amounts paid in settlement of any litigation,
commenced or threatened, if such settlement is effected with the written consent
of the Corporation (which consent shall not unreasonably be withheld); provided,
however, that the Corporation shall not be liable to a particular indemnified
party to the extent that any Claim or expense arises out of or is based upon any
untrue statement or omission made in any Registration Document in reliance upon
and in conformity with written information furnished to the Corporation by or on
behalf of such indemnified party through an instrument duly executed by such
indemnified party specifically stating that it is for use in the preparation of
the Registration Document.
(b) Indemnity by the Sellers. In the event of any registration under
the Securities Act of any shares of Common Stock pursuant to this Agreement,
each Seller severally shall:
(i) indemnify and hold harmless the Corporation, each of its
directors, each of its officers who have signed the registration statement, each
other person, if any, who controls the Corporation within the meaning of Section
15 of the Securities Act, and each underwriter and each other person, if any,
who controls such underwriter within the meaning of Section 15 of the Securities
Act against any Claims to which each such indemnified party may become subject
under the Securities Act or otherwise, insofar as such Claims (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Document, or
arise out of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein not misleading; and
(ii) reimburse each indemnified party for all legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such Claim or action, including any amounts paid in settlement of any
litigation, commenced or threatened, if such settlement is effected with the
prior written consent of the Seller (which consent shall not unreasonably be
withheld); provided, however, that such indemnification or reimbursement shall
be payable only if, and to the extent that, any Claim or expense arises out of
or is based upon an untrue statement or omission made in any Registration
Document in reliance upon and in conformity with written information furnished
to the Corporation through an instrument duly executed by the Seller
specifically stating that it is for use in the preparation thereof; and provided
further that the liability of such Seller shall be limited to an amount equal to
the net proceeds to such Seller of shares of Common Stock sold by such Seller
pursuant to such registration as contemplated herein.
(c) Procedure for Indemnification. Promptly after receipt by an
indemnified party, under Section 3.9(a) or 3.9(b), of notice of the commencement
of any action, the indemnified party
22
<PAGE> 24
shall notify the indemnifying party in writing of the commencement thereof, if a
claim in respect thereof is to be made against an indemnifying party under any
of these Sections; but the omission of such notice shall not relieve the
indemnifying party from liability which it may have to the indemnified party
under this Section 3.9, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice and shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 3.9.
In case any action is brought against the indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and to the extent that
it chooses, to assume the defense thereof with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not be liable
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof; provided however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the claim within 20 days after receiving notice from the indemnified party that
the indemnified party believes it has failed to do so, or (ii) if the
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there may be legal defenses available to the indemnified party which are not
available to the indemnifying party, or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there may
be legal defenses available to such party or parties which are not available to
the other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any expenses therefor.
(d) Non-Exclusive Indemnity. Any indemnity agreements contained herein
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party.
(e) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses:
(i) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge,
23
<PAGE> 25
access to information and opportunity to correct or prevent such untrue
statement or omission); or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, in such proportion as is appropriate to
reflect not only the relative fault of the indemnifying party and the
indemnified party, but also the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other (taking into
consideration the fact that the provision of the registration rights hereunder
is a material inducement to the Investors to acquire shares of Common Stock), as
well as any other relevant equitable considerations.
No person or entity found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person or entity who was not found guilty of such
fraudulent misrepresentation. Notwithstanding anything to the contrary in this
Section 3.9(e), no indemnifying party (other than the Corporation) shall be
required, pursuant to this Section 3.9(e), to contribute any amount in excess of
the net proceeds received by such indemnifying party from the sale of shares of
Common Stock in the offering to which the losses, claims, damages, liabilities
or expenses of the indemnified party relate.
(f) Notwithstanding any of the foregoing, if, in connection with an
underwritten public offering of any Restricted Shares, the Corporation, the
holders of such Restricted Shares and the underwriters enter into an
underwriting or purchase agreement relating to such offering which contains
substantially similar provisions covering indemnification among the parties,
then the indemnification provision of this Section 3.9 shall be deemed
inoperative for purposes of such offering.
3.10 Removal of Legends, Etc. Notwithstanding the foregoing provisions
of this Section 3, the restrictions imposed by this Section 3 upon the
transferability of any Restricted Securities shall cease and terminate when (a)
any such Restricted Securities are sold or otherwise disposed of in accordance
with the intended method of disposition by the seller or sellers thereof set
forth in a registration statement or such other method contemplated by Section
3.3 hereof that does not require that the securities transferred bear the legend
set forth in Section 3.2 hereof, including a Transfer pursuant to Rule 144 or a
successor rule thereof (as amended from time to time), or (b) the holder of
Restricted Securities has met the requirements for transfer of such Restricted
Securities pursuant to subparagraph (k) of Rule 144 or a successor rule thereof
(as amended from time to time) promulgated by the Commission under the
Securities Act. Whenever the restrictions imposed by this Section 3 have
terminated, a holder of a certificate for Restricted Securities as to which such
restrictions have terminated shall be entitled to receive from the Corporation,
without expense and the Corporation shall use its reasonable best efforts to
provide such holder with, a new certificate not bearing the restrictive legend
set forth in Section 3.2 hereof and not containing any other reference to the
restrictions imposed by this Section 3.
SECTION 4. Securities Act Registration Statements. Except for
securities of the Corporation registered on Forms S-2 or S-3, or successor
approved forms, of the Securities and Exchange Commission, the Corporation shall
not file any registration statement under the
24
<PAGE> 26
Securities Act covering any securities unless it shall first have given each
holder of Restricted Securities written notice thereof. The Corporation further
covenants that each holder of Restricted Securities shall have the right, at any
time when it may be deemed to be a controlling person of the Corporation, within
the meaning of the Securities Act, to participate in the preparation of such
registration statement and to request the insertion therein of material
furnished to the Corporation in writing which in such holder's judgment should
be included. In connection with any registration statement referred to in this
Section 4, the Corporation shall indemnify, to the extent permitted by law, each
holder of Restricted Securities, its officers, partners and directors and each
person, if any, who controls any such holder within the meaning of the
Securities Act in the same manner and to the same extent as the Corporation is
required to indemnify a seller of Restricted Securities in Section 3.9 hereof.
If, in connection with any such registration statement, any holder of Restricted
Securities shall furnish written information to the Corporation expressly for
use in the registration statement, then such holder shall indemnify the
Corporation, each director of the Corporation, each officer of the Corporation
who signs such registration statement and each person, if any, who controls the
Corporation within the meaning of the Securities Act to the same extent as a
seller of Restricted Securities is required to indemnify such persons in Section
3.9 hereof.
SECTION 5. ELECTION OF DIRECTORS.
5.1 Voting for Directors. At each annual meeting of the stockholders of
the Corporation and at each special meeting of the stockholders of the
Corporation called for the purposes of electing directors of the Corporation,
and at any time at which stockholders of the Corporation shall have the right
to, or shall, vote for or consent to the election of directors, then, in each
such event, each Investor shall vote all Preferred Shares and any other shares
of voting stock of the Corporation then owned (or controlled as to voting
rights) by it, whether by purchase, exercises of rights, warrants or options,
stock dividends or otherwise:
(a) to fix and maintain the number of directors on the Board of
Directors of the Corporation at no more than ** ;
(b) to elect to the Board ** designated by Roche (the ** ) for so long
as Roche owns at least ** of the shares of Series A Preferred Stock originally
issued to it by the Corporation (subject to adjustment for stock splits, stock
dividends, stock combinations, recapitalizations and like occurrences) ** ; and
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
25
<PAGE> 27
(c) to elect to the Board ** designated by OSI (the ** ) and **
designated by Cold Spring Harbor Laboratory (the ** ) for so long as OSI and
Cold Spring Harbor Laboratory, respectively, owns at least ** of the shares of
Series A Preferred Stock originally issued to it by the Corporation (subject to
adjustment for stock splits, stock dividends, stock combinations,
recapitalizations and like occurrences).
The ** and ** and the ** shall be the Series A Directors (as defined in
the Certificate) under the Certificate.
5.2 Cooperation of the Corporation. The Corporation shall use its best
efforts to effectuate the purposes of this Section 5, including promoting the
adoption of any necessary amendment of the By-Laws of the Corporation and the
Certificate.
5.3 Notices. The Corporation shall provide the Investors with at least
twenty (20) days' prior notice in writing of any intended mailing by the
Corporation of notice to the Investors of a meeting at which directors are to be
elected, and such notice shall include the names of the persons designated
pursuant to Section 5.1 hereof. Roche, OSI and Cold Spring Harbor Laboratory,
respectively, shall each notify the Corporation in writing at least three (3)
days prior to such mailing, of the persons designated by Roche, OSI and Cold
Spring Harbor Laboratory pursuant to Section A.5.1 hereof, as nominees for
election to the Board. In the absence of any notice from Roche, OSI and Cold
Spring Harbor Laboratory, as the case may be, the director(s) then serving and
previously designated shall be renominated.
5.4 Removal. Except as otherwise provided in this Section 5, no
Investor shall vote to remove any member of the Board designated in accordance
with the foregoing provisions of this Section 5 unless the party that designated
such director (the "Designating Party") shall so vote or otherwise consent, and,
if the Designating Party shall so vote or otherwise consent, then the
non-designating party shall likewise so vote. Except as otherwise provided in
this Section 5, any vacancy on the Board created by the resignation, removal,
incapacity or death of any person designated under the foregoing provisions of
this Section 5 shall be filled by another person designated by the original
Designating Party. Each Investor shall vote all shares of voting stock of the
Corporation owned or controlled by such Investor in accordance with each such
new designation, and no such vacancy shall be filled in the absence of a new
designation by the original Designating Party.
5.5 Duration of Section. This Section 5 and the rights and obligations
of the parties hereunder shall automatically terminate on the consummation of a
firm commitment underwritten public offering of Common Stock registered under
the Securities Act pursuant to which (X) Common Stock is offered to the public
at a price of at least ** per share (subject to adjustment for stock splits,
stock dividends, stock combinations, recapitalizations and like
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
26
<PAGE> 28
occurrences) and (Y) the net proceeds to the Corporation are at least ** (the
"Termination Date"). Prior to the Termination Date the rights and obligations of
any Investor under this Section 5 shall terminate upon the date on which such
Investor no longer owns any Preferred Shares, whereupon the obligations of the
remaining Investors to vote in favor of the designee, if any, of any such
Investor shall also terminate.
5.6 Observation Rights. In the event that Roche elects (or is deemed to
elect) not to designate ** to attend all meetings of the Board of Directors of
the Corporation, and shall, upon the written request of the Roche Observer,
provide such ** with such notice and other information with respect to such
meetings as are delivered to the directors of the Corporation. The foregoing
observation rights shall be conditioned upon the ** executing and delivering to
the Corporation a customary confidentiality agreement pursuant to which such **
agrees to hold in confidence the confidential information of the Corporation.
Notwithstanding the foregoing, the Corporation shall not be required to
permit the ** to attend all or any portion of a meeting, or to provide to such
** information with respect to a meeting, (a) to the extent that the Board of
Directors determines in good faith that the Corporation and Roche have
conflicting interests relating to a matter to be discussed, or (b) to the extent
that a matter to be discussed at such meeting and information related thereto
relates to potential or actual licensing, development, joint venture or similar
transactions between the Corporation and a third party, provided that the
Corporation shall act reasonably in determining whether to permit such
attendance or provide such information.
SECTION 6. Employee Stock Option Plan. The Investors shall vote in
favor of the establishment of a stock option plan, and from time to time shall
vote in favor of any amendments thereto, in such form and substance as
recommended by the Board of Directors (the "Stock Plan"), to provide for stock
options (the "Options") being granted to eligible officers, employees,
consultants, Board members and scientific advisers, providing for the purchase
of an amount of shares of Common Stock not to exceed ** of the shares of capital
stock outstanding. This Section 6 shall terminate upon the Termination Date.
SECTION 7. Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties under this Agreement are cumulative
and not exclusive of any other right, power or remedy which such parties may
have under any other agreement or law. No single or partial assertion or
exercise of any right, power or remedy of a party hereunder shall preclude any
other or further assertion or exercise thereof.
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
27
<PAGE> 29
SECTION 8. Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall bind and inure to the benefit of the
Corporation and each of the Investors and the respective successors and assigns
of the Corporation and each of the Investors. Subject to the provisions of
Sections 3.1, 3.2, 3.3 and 3.10 hereof, which are intended solely to ensure
compliance with the provisions of the Securities Act, this Agreement and the
rights and duties of the Investors set forth herein may be assigned, in whole or
in part, by each Investor with the prior written consent of the Large
Stockholders. Any transferee (other than an Investor) to whom rights under
Section 3 are transferred shall, as a condition to such transfer, deliver to the
Corporation a written instrument by which such transferee identifies itself,
gives the Corporation notice of the transfer of such rights, identifies the
securities of the Corporation owned or acquired by it and agrees to be bound by
the obligations imposed hereunder to the same extent as if such transferee were
an Investor hereunder. A transferee to whom rights are transferred pursuant to
this Section 8 will be thereafter deemed to be an Investor for the purpose of
the execution of such transferred rights and may not again transfer such rights
to any other person or entity, other than as provided in this Section 8. Neither
this Agreement nor any of the rights or duties of the Corporation set forth
herein shall be assigned by the Corporation, in whole or in part, without having
first received the written consent of the Investors holding a majority in voting
power of the outstanding Preferred Shares, with each such holder entitled to the
number of votes for each such share of Preferred Stock as equals the number of
shares of Common Stock (including fractional shares) into which each such share
of Preferred Stock is then convertible, rounded up to the nearest one-tenth of a
share.
SECTION 9. Duration of Agreement. The rights and obligations of the
Corporation and each Investor set forth herein shall survive indefinitely,
unless and until, by their respective terms, they are no longer applicable.
SECTION 10. Entire Agreement. This Agreement, together with the other
writings referred to herein or delivered pursuant hereto which form a part
hereof, contains the entire agreement among the parties with respect to the
subject matter hereof and amends, restates and supersedes all prior and
contemporaneous arrangements or understandings with respect thereto. This
Agreement may not be amended except in writing by the holders of at least
two-thirds (2/3) of the outstanding capital stock of the Corporation inclusive
of the Large Stockholders.
SECTION 11. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or duly sent by first
class registered, certified or overnight mail, postage prepaid, or telecopies
with a confirmation copy by regular mail, addressed or telecopied, as the case
may be, to such party at the address or telecopier number, as the case may be,
set forth on Schedule 2 hereto or such other address or telecopier number, as
the case may be, as may hereafter be designated in writing by the addressee to
the addressor.
SECTION 12. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
28
<PAGE> 30
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, excluding choice
of law rules thereof.
SECTION 14 . Interpretation. When the context in which words are used
in this Agreement indicates that such is the intent, words in the singular
number shall include the plural, and vice versa. Headings contained herein are
inserted only as a matter of convenience and in no way define, limit, extend or
interpret the scope of this Agreement or any Section hereof. Pronouns stated in
either the masculine, the feminine or the neuter gender shall include the
masculine, feminine and the neuter.
29
<PAGE> 31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
HELICON THERAPEUTICS, INC.
By: /s/
Name:
Title:
**
By: /s/
Name:
Title:
ONCOGENE SCIENCE, INC.
By: /s/
Name:
Title:
COLD SPRING HARBOR LABORATORY
By: /s/
Name:
Title:
/s/
----------------------------------
**
/s/
----------------------------------
**
/s/
----------------------------------
**
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
30
<PAGE> 32
Other CSHL Individuals*
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
- --------
* The Other CSHL Individuals shall be determined at a later closing date
at which time Ordinary Common Stock shall be issued to such persons
pursuant to the terms and conditions of this Agreement.
31
<PAGE> 33
SCHEDULE 1
<TABLE>
<CAPTION>
PERCENTAGE OF TOTAL
NUMBER OF SHARES OF
NUMBER OF CAPITAL STOCK
NAME AND ADDRESS OF STOCKHOLDER SHARES OUTSTANDING TYPE
- ------------------------------- --------- ------------------- ---------
<S> <C> <C> <C>
ONCOGENE SCIENCE, INC. ** ** Preferred
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
COLD SPRING HARBOR LABORATORY ** ** Preferred
Cold Spring Harbor, New York
** ** ** Preferred
and
**
with a simultaneous copy to:
HOFFMANN - LA ROCHE INC.
340 Kingsland Street
Nutley, New Jersey 07110
Attention: General Counsel
</TABLE>
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
32
<PAGE> 34
<TABLE>
<S> <C> <C> <C>
** ** **
Senior
c/o CSHL
Common
** ** **
Senior
c/o CSHL
Common
** ** **
Senior
c/o CSHL
Common
"The Other CSHL Stockholders" ** **
Ordinary
Common
- ---------------------------- ------- ------
Total ** 100%
</TABLE>
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
33
<PAGE> 35
SCHEDULE 2
ADDRESSES FOR NOTICES
HELICON THERAPEUTICS, INC.
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
COLD SPRING HARBOR LABORATORY
Hershey Building
One Bungtown Road
Cold Spring Harbor, New York
ONCOGENE SCIENCE, INC.
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
**
and
**
with a simultaneous copy to:
HOFFMANN - LA ROCHE INC.
340 Kingsland Street
Nutley, New Jersey 07110
Attention: General Counsel
**
c/o CSHL
**
c/o CSHL
**
c/o CSHL
- --------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
34
<PAGE> 1
Portions of this Exhibit 10.35 have been redacted and are the subject
of a confidential treatment request filed with the Secretary of the Securities
and Exchange Commission.
<PAGE> 2
CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
THIS AGREEMENT, dated this 17th day of July, 1997 is entered into by
and among Helicon Therapeutics, Inc., a Delaware corporation (the
"Corporation"), ** ("Roche"), Oncogene Science, Inc. ("OSI") and Cold Spring
Harbor Laboratory ("CSHL", and collectively with Roche and OSI, the
"Investors").
The Corporation and the Investors are desirous of providing for the
issuance of shares of Preferred Stock (as hereinafter defined) by the
Corporation and to the Investors, as more specifically set forth hereinafter.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. Filing of Certificate. Prior to the Closing (as defined in
Section 4 hereof), the Corporation shall have filed a Certificate of
Incorporation of the Corporation (the "Certificate") in the form attached hereto
as Exhibit A. Pursuant to the Certificate, the Corporation shall be authorized
to issue up to ** shares of Common Stock, par value $.001 per share ("Common
Stock"), of which ** shares of Common Stock shall have been designated as
Ordinary Common Stock ("Ordinary Common Stock") and ** shares of Common Stock
shall have been designated Senior Common Stock, and up to ** shares of Preferred
Stock, par value $.001 per share (the "Preferred Stock"), of which ** shares of
Preferred Stock shall have been designated as Series A Convertible Preferred
Stock.
SECTION 2. Authorization of Issuance and Sale of Preferred Shares;
Reservation of Reserved Shares; Use of Proceeds.
2.1 Authorization of Issuance. Subject to the terms and
conditions hereof, the Corporation has authorized the sale and issuance to the
Investors on the Closing Date (as defined in Section 4 hereof) the number of
shares of Preferred Stock (such shares of Preferred Stock being sometimes
hereinafter referred to as the "Preferred Shares") as set forth on Schedule 1
hereof.
2.2 Reservation of Reserved Shares. Prior to the Closing, the
Corporation shall have reserved for issuance ** shares of Ordinary Common Stock
for issuance upon conversion of the Preferred Shares (such reserved Ordinary
Common Stock being sometimes collectively hereinafter referred to as the
"Reserved Shares").
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
1
<PAGE> 3
2.3 Use of Proceeds. The Corporation shall use the net cash
proceeds from the sale of the Preferred Shares hereby for research and product
development and other working capital purposes.
SECTION 3. Delivery of Preferred Shares.
3.1 Agreement to Sell and Purchase Preferred Shares.
(a) Subject to the terms and conditions set forth
herein, including, but not limited to, the conditions precedent set forth in
Section 7 below, at the Closing, the Corporation shall sell and issue to Roche,
and Roche shall purchase and receive from the Corporation, the number of
Preferred Shares set forth opposite its name on Schedule 1 at the purchase price
of ** per share (the "Purchase Price").
(b) Subject to the terms and conditions set forth
herein, including, but not limited to, the conditions precedent set forth in
Section 7 below, at the Closing, the Corporation shall sell and issue to OSI,
and OSI shall purchase and receive from the Corporation, the number of Preferred
Shares set forth opposite its name on Schedule 1 and in consideration therefor
OSI shall contribute to the Corporation (i) ** , (ii) a non-exclusive,
royalty-free license to use screening technology (as defined herein) and
commercialize products which are the subject of an OSI patent application
covering a method of screening and modulation transcription and ** .
(c) Subject to the terms and conditions set forth
herein, including, but not limited to, the conditions precedent set forth in
Section 7 below, at the Closing, the Corporation shall sell and issue to CSHL,
and CSHL shall purchase and receive from the Corporation, the number of
Preferred Shares set forth opposite its name on Schedule 1 and in consideration
therefor CSHL shall contribute to the Corporation (i) an exclusive royalty free
license to commercialize technology which is the subject of a CSHL patent
application covering a method of cloning and characterizing genes associated
with long-term memory, under which CSHL shall be entitled to reimbursement from
the Corporation for patent and related expenses and (ii) ** .
3.2 Delivery of Shares; Form of Consideration. At the Closing,
the Corporation shall deliver to the Investors certificate(s), registered in the
name of the Investors, representing their respective Preferred Shares. Delivery
of certificate(s) representing the Preferred Shares shall be made to Roche
against payment by Roche of the Purchase Price by wire transfer in immediately
available funds to an account designated by the Corporation.
SECTION 4. The Closing. The closing (the "Closing") hereunder with
respect to the transactions contemplated by Sections 2 and 3 hereof is taking
place by facsimile transmission of executed copies of the documents contemplated
hereby delivered on the date hereof at the offices of Squadron, Ellenoff,
Plesent & Sheinfeld, LLP, New York, New York (the date hereof sometimes
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
2
<PAGE> 4
being referred to herein as the "Closing Date") and confirmed by overnight
delivery of originally executed copies of such documents.
SECTION 5. Representations and Warranties of the Corporation to the
Investor.
The Corporation hereby represents and warrants to the Investors as
follows:
5.1 Organization. The Corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own and lease
its property and to carry on its business as presently conducted. The
Corporation does not own or lease property or engage in any activity in any
other jurisdiction which would require its qualification in such jurisdiction
and in which the failure to be so qualified would have a material adverse effect
on the financial or any other business condition of the Corporation.
5.2 Capitalization. As more fully described in the
capitalization table set forth in Exhibit B attached hereto, the authorized
capital stock of the Corporation immediately following the Closing shall consist
of:
(a) ** shares of Common Stock, of which ** shares
of Ordinary Common Stock shall have been duly reserved for issuance upon
conversion of the issued and outstanding shares of Series A Preferred Stock;
(b) ** shares of Preferred Stock, of which **
shares shall be designated as Series A Convertible Preferred Stock, of which **
shares shall be validly issued and outstanding.
Except pursuant to the terms of this Agreement, the Certificate, the
By-laws of the Corporation (the "By-laws"), the Stockholders' Agreement dated as
of the date hereof among the Corporation and the other signatories thereto
attached hereto as Exhibit C (the "Stockholders' Agreement"), the Collaborative
Research and License Agreement entered into as of July 1, 1997, by and between
Hoffmann-La Roche Inc. and the Corporation, the additional shares which may be
purchased by the holders of the Common Stock, there are, and immediately
following the Closing, there will be: (1) no outstanding warrants, options,
rights, agreements, convertible securities or other commitments or instruments
pursuant to which the Corporation is or may become obligated to issue, sell,
repurchase or redeem any shares of capital stock or other securities of the
Corporation; (2) no preemptive, contractual or similar rights to purchase or
otherwise acquire shares of capital stock of the Corporation pursuant to any
provision of law or any agreement to which the Corporation is a party or may
otherwise by bound; (3) no restrictions on the transfer of capital stock of the
Corporation imposed by any agreement to which the Corporation is a party or, to
the best of the Corporation's knowledge, any order of any court or any
governmental agency to which the Corporation is subject, other than with respect
to any applicable statutes, laws, rules or regulations; (4) no cumulative voting
rights for any of the Corporation's capital stock; (5) no registration rights
under the Securities Act of 1933, as amended ("Securities Act"), with respect to
- ------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
3
<PAGE> 5
shares of the Corporation's capital stock; (6) to the best of the Corporation's
knowledge, no options or other rights to purchase shares of capital stock from
stockholders of the Corporation granted by such stockholders; and (7) no
agreements, written or oral, between the Corporation and any holder of its
securities, or, to the best of the Corporation's knowledge, among holders of its
securities, relating to the acquisition, disposition or voting of the securities
of the Corporation.
5.3 Authorization of this Agreement. The execution, delivery
and performance by the Corporation of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Corporation. This Agreement has been duly executed and
delivered by the Corporation and constitutes a valid and binding obligation of
the Corporation, enforceable in accordance with its terms. The execution,
delivery and performance of this Agreement, the filing of the Certificate and
the compliance with the provisions hereof and thereof by the Corporation, will
not:
(a) violate any provision of law, statute,
ordinance, rule or regulation or any ruling, writ, injunction, order, judgment
or decree of any court, administrative agency or other governmental body;
(b) conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute (with due notice or lapse
of time, or both) a default (or give rise to any right of termination,
cancellation or acceleration) under (i) any agreement, document, instrument,
contract, understanding, arrangement, note, indenture, mortgage or lease to
which the Corporation is a party or under which the Corporation or any of its
assets is bound or affected, (ii) the Certificate, or (iii) the By-laws; or
(c) result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of the
Corporation.
5.4 Authorization of Preferred Shares and Reserved Shares.
(a) The issuance, sale and delivery of the
Preferred Shares have been duly authorized by all requisite action of the
Corporation, and, when issued, sold and delivered in accordance with this
Agreement, the Preferred Shares will be validly issued and outstanding, fully
paid and non-assessable, with no personal liability attaching to the ownership
thereof, and, except as may be set forth in the Stockholders' Agreement, not
subject to preemptive or any other similar rights of the stockholders of the
Corporation or others.
(b) The reservation, issuance, sale and delivery by
the Corporation of the Reserved Shares have been duly authorized by all
requisite action of the Corporation, and the Reserved Shares have been duly
reserved in accordance with Section 2.2 of this Agreement. Upon the issuance and
delivery of the Reserved Shares in accordance with the terms of this Agreement,
the Reserved Shares will be validly issued and outstanding, fully paid and
non-assessable, with no personal liability attaching to the ownership thereof,
and not subject to preemptive or any other similar rights of the stockholders of
the Corporation or others.
5.5 Consents and Approvals. No authorization, consent,
approval or other order of, or declaration to or filing with, any governmental
agency or body (other than filings required to be made under applicable federal
and state securities laws) or any other person, entity or
4
<PAGE> 6
association is required for: (a) the valid authorization, execution, delivery
and performance by the Corporation of this Agreement; (b) the valid
authorization, issuance, sale and delivery of the Preferred Shares; or (c) the
valid authorization, reservation, issuance, sale and delivery of the Reserved
Shares. The Corporation has obtained all other consents that are necessary to
permit the consummation of the transactions contemplated hereby and thereby.
5.6 Business of Corporation.
(a) Except as set forth in Schedule 5.6(a) attached
hereto:
(i) the Corporation has not entered into and
is not a party to and is not otherwise bound or affected by any written or oral
contract, agreement, understanding, arrangement, lease, guaranty or other
obligation or series of related obligations or transactions in excess of Twenty
Five Thousand Dollars ($25,000), other than this Agreement, the transactions
contemplated by the Stockholders' Agreement and the stock option agreements
relating to the Plan Shares;
(ii) the Corporation is not a party to, or,
directly or indirectly bound by, any indenture, mortgage, deed of trust or other
agreement or instrument relating to the borrowing of money, the guarantee of
indebtedness or the granting of any security interest, negative pledge or other
encumbrance on the assets of the Corporation; and
(iii) the Corporation has not incurred and
is not subject to any liabilities or obligations, fixed or contingent, matured
or unmatured or otherwise, that, individually or in the aggregate, could have a
material adverse effect upon the business, operation, conditions or prospects of
the Corporation.
(b) The unaudited financial statements described in
Section 5.6(k) hereof, including any notes thereto, reflect all liabilities of
the Corporation as of the date of such financial statements. Since the date of
the Balance Sheet (as such term is hereinafter defined), the Corporation has not
incurred any obligation (or series of related obligations) or liability,
contingent or otherwise, in excess of One Hundred Thousand Dollars ($100,000)
except as set forth in Schedule 5.6(b) attached hereto.
(c) Except as provided in Schedule 5.6(c) attached
hereto: (i) there are no actions, suits, arbitrations, claims, investigations or
legal or administrative proceedings pending or, to the best of the Corporation's
knowledge, threatened, against the Corporation, whether at law or in equity;
(ii) there are no judgments, decrees, injunctions or orders of any court,
government department, commission, agency, instrumentality or arbitrator entered
or existing against the Corporation or any of its assets or properties for any
of the foregoing or otherwise; and (iii) the Corporation has not admitted in
writing its inability to pay its debts generally as they become due, filed or
consented to the filing against it of a petition in bankruptcy or a petition to
take advantage of any insolvency act, made an assignment for the benefit of
creditors, consented to the appointment of a receiver for itself or for the
whole or any substantial part of its property, or had a petition in bankruptcy
filed against it, been adjudicated bankrupt, or filed a petition or answer
seeking reorganization or arrangement under the federal bankruptcy laws or any
other laws of the United States or any other jurisdiction.
5
<PAGE> 7
(d) The Corporation is in compliance in all
material respects with all obligations, agreements and conditions contained in
any evidence of indebtedness or any loan agreement or other contract or
agreement (whether or not relating to indebtedness) to which the Corporation is
a party or is subject (collectively, the "Obligations"), the lack of compliance
with which could afford to any person the right to accelerate any indebtedness
or terminate any right of or agreement with the Corporation. To the best of the
Corporation's knowledge, all other parties to such Obligations are in compliance
with the terms and conditions of such Obligations.
(e) Except for employment and consulting agreements
set forth on Schedule 5.6(a) attached hereto, agreements and arrangements
relating to the Plan Shares or the Scientist Shares and except as provided in
Schedule 5.6(e) attached hereto, this Agreement and the Stockholders' Agreement,
there are no agreements, understandings or proposed transactions between the
Corporation and any of its employees, officers, directors or other affiliates
(as defined in Rule 405 promulgated under the Securities Act) or any affiliates
of such employees, officers, directors or other affiliates.
(f) Each current employee of or consultant to the
Corporation who has or is proposed to have access to confidential and/or
proprietary information of the Corporation is a signatory to, and is bound by,
an agreement with the Corporation relating to noncompetition, nondisclosure,
proprietary information and/or assignment of patent, copyright and other
intellectual property rights substantially in a form previously approved by the
Board of Directors of the Corporation.
(g) To the best of the Corporation's knowledge, no
employee of or consultant to the Corporation is in violation of any term of any
employment contract, patent disclosure agreement or any other contract or
agreement including, but not limited to, those matters relating (i) to the
relationship of any such employee with the Corporation or to any other party as
a result of the nature of the Corporation's business as currently conducted, or
(ii) to unfair competition, trade secrets or proprietary information.
(h) The Corporation does not have any employee
benefit plans, except as disclosed in Schedule 5.6(h) attached hereto.
(i) The Corporation's employees are not
represented by any labor unions nor, to the Corporation's knowledge, is any
union organization campaign in progress. The Corporation is not aware that any
of its officers or key employees intends to terminate his or her employment with
the Corporation, nor does the Corporation have a present intention to terminate
the employment of any of its officers or key employees, which termination of
employment would have a material adverse effect on the operations, condition
(financial or otherwise), business or research prospects of the Corporation.
(j) The Corporation is not in violation of or
default under any provision of its By-Laws or Certificate, or, in any material
respect under any contract, instrument, judgment, order, writ or decree to which
it is a party or by which it or any of its properties are bound, and, to the
best of the Corporation's knowledge, the Corporation is not in violation of any
material provision of any federal or state statute, rule or regulation
applicable to the Corporation.
6
<PAGE> 8
(k) Included in Schedule 5.6(k) attached hereto is
the Unaudited Balance Sheet dated as June 30, 1997 and Statements of Operation,
Stockholders' Equity and Cash Flow as June 30, 1997 (collectively, the
"Unaudited Financial Statements"). The Unaudited Financial Statements are
complete and correct, are in accordance with the books and records of the
Corporation and present fairly the financial condition and results of operations
of the Corporation, as at the dates and for the periods indicated, and have been
prepared in accordance with generally accepted accounting principles
consistently applied, except that the Unaudited Financial Statements have been
prepared for the internal use of management and may not be in accordance with
generally accepted accounting principles because of the absence of footnotes
normally contained therein and are subject to normal year-end audit adjustments
which, individually, and in the aggregate, will not be material.
(l) Except as set forth in Schedule 5.6(l), there
has not been since June 30, 1997:
(i) any change in the assets, liabilities,
financial condition or operating results of the Corporation from that reflected
in the Unaudited Financial Statements, except changes in the ordinary course of
business which individually or in the aggregate do not have a material adverse
effect on the operations or financial condition of the Corporation;
(ii) any damage, destruction or loss,
whether or not covered by insurance, which individually or in the aggregate
might have a material adverse effect on the operations or financial condition of
the Corporation;
(iii) any waiver by the Corporation of a
material valuable right or a material debt owed to it;
(iv) any satisfaction or discharge of any
lien, claim or encumbrance or payment of any obligation by the Corporation,
except in the ordinary course of business and which is not material to the
assets, properties, financial condition, operating results or business of the
Corporation, as such business is presently conducted and as it is presently
proposed to be conducted;
(v) any materially adverse change or
amendment to a material contract or arrangement by which the Corporation or any
of its assets or properties is bound or subject;
(vi) any material change to the terms or
conditions in any compensation arrangement or agreement with any employee of the
Corporation, other than clerical and non-managerial employees of the
Corporation, such as secretaries, laboratory technicians and laboratory
assistants;
(vii) any resignation or termination of
employment of any key officer of the Corporation;
(viii) any mortgage, pledge, transfer of a
security interest in, or lien created by the Corporation, with respect to any of
its material properties or assets, except for liens for taxes not yet due or
payable;
7
<PAGE> 9
(ix) any declaration, setting aside or
payment or other distribution in respect of any of the Corporation's capital
stock, or any direct or indirect redemption, purchase or other acquisition of
any of such stock by the Corporation; or
(x) to the best of Corporation's knowledge,
any other event or condition of any character which, individually or in the
aggregate, might have a material adverse effect on the operations or financial
condition of the Corporation, other than events affecting the global, national
or local economy generally, the financial markets generally or the Corporation's
industry generally.
(m) Except as set forth in Schedule 5.6(m), each
employee and director of or consultant to the Corporation who has been issued
shares of the Corporation's Common Stock or options to purchase shares of the
Corporation's Common Stock is a signatory to, and is bound by, a Stock
Restriction Agreement and/or a Stock Option Agreement, as the case may be, all
with stock transfer restrictions and rights of first offer in favor of the
Corporation in a form previously approved by the Board of Directors. In
addition, each such Agreement contains a vesting schedule previously approved by
the Board of Directors.
5.7 Disclosure. This Agreement (including the Schedules
hereto), and the Unaudited Financial Statements, taken individually and as a
whole, do not contain any untrue statement of material fact, fairly represent
the business, properties, assets and condition, financial or other, of the
Corporation and do not fail to state a material fact necessary in order to make
the statements contained therein and herein, when taken as a whole, not
misleading.
5.8 Payment of Taxes. The Corporation has accurately prepared
and filed within the time prescribed by law all federal, state and local income,
excise or franchise tax returns, real estate and personal property tax returns,
sales and use tax returns, payroll tax returns and other tax returns required to
be filed by it, and has paid or made provision for the payment of all accrued
and unpaid taxes and other charges to which the Corporation is subject and which
are not currently due and payable. The Corporation has not elected to be treated
as a Subchapter S corporation pursuant to Section 1362 of the Internal Revenue
Code of 1986, as amended (the "Code"), or as a collapsible corporation pursuant
to Section 341(f) of the Code. The Corporation has never had any tax deficiency
proposed or assessed against it and has not executed any waiver of any statute
of limitations on the assessment or collection of any tax or governmental
charge. The federal income tax returns of the Corporation have never been
audited by the Internal Revenue Service. Neither the Internal Revenue Service
nor any other taxing authority is now asserting nor is threatening to assert
against the Corporation any deficiency or claim for additional taxes or interest
thereon or penalties in connection therewith, and the Corporation does not know
of any such deficiency or basis for such deficiency or claim.
5.9 Intellectual Property Rights. All patents, patent rights,
patent applications, registered trademarks and service marks, trademark rights,
trademark applications, trade names, registered copyrights and all licenses
owned or possessed by the Corporation are listed on Schedule 5.9 attached hereto
(collectively, the "Listed Rights"). To the best of the Corporation's knowledge,
except as set forth on Schedule 5.9, the Listed Rights comprise all of the
patents, patent rights, patent applications, registered trademarks and service
marks, trademark rights, trademark applications, trade names, registered
copyrights and all licenses that are necessary for the conduct
8
<PAGE> 10
of the business of the Corporation as now being conducted and as currently
proposed to be conducted. Except as set forth on Schedule 5.9, to the best of
the Corporation's knowledge, the Corporation owns and possesses all of the
proprietary rights and trade secrets not included in the Listed Rights
(hereinafter collectively referred to as "Intellectual Property") necessary for
the Corporation's business as now being conducted and as currently proposed to
be conducted. Except as set forth on Schedule 5.9, to the best of the
Corporation's knowledge, the Listed Rights and Intellectual Property are valid
and enforceable rights and do not infringe or conflict with the rights of any
third party. There is neither pending nor threatened, or, to the best of the
Corporation's knowledge, any basis for, any claim or litigation against the
Corporation contesting the validity or right to use any of the Listed Rights or
Intellectual Property, and the Corporation has not received any notice of
infringement upon or conflict with any asserted right of others nor, to the best
of the Corporation's knowledge, is there any basis for such a notice. To the
best of the Corporation's knowledge, no person, corporation or other entity is
infringing the Corporation's rights to the Listed Rights or Intellectual
Property. Except as otherwise provided in Schedule 5.9, the Corporation has no
obligation to compensate others for the use of any Listed Right or any
Intellectual Property, nor has the Corporation granted any license or other
right to use, in any manner, any of the Listed Rights or Intellectual Property,
whether or not requiring the payment of royalties.
5.10 Securities Laws. Neither the Corporation nor anyone
acting on its behalf has offered securities of the Corporation for sale to, or
solicited any offers to buy the same from, or sold securities of the Corporation
to, any person or organization, in any case so as to subject the Corporation,
its promoters, directors and/or officers to any liability under the Securities
Act, the Securities Exchange Act of 1934, as amended, or any state securities or
"blue sky" law (collectively, the "Securities Laws"). The offer, grant, sale
and/or issuance of the Preferred Shares and the Common Stock issuable upon the
conversion of the Preferred Shares were not, are not, or, as the case may be,
will not be, in violation of the Securities Laws when offered, sold and issued
in accordance with the operative documents relating to their issuance.
5.11 Title to Properties. Except as provided on Schedule 5.11
attached hereto, the Corporation has good, legal and merchantable title to all
of its assets, including all properties and assets reflected on the Balance
Sheet and the Unaudited Balance Sheet, free and clear of all liens, restrictions
or encumbrances, except those assets disposed of since the date of such Balance
Sheet in the ordinary course of business. All machinery and equipment included
in such properties which are material to the business of the Corporation are in
good condition and repair, and each lease of real or personal property to which
the Corporation is a party is fully effective, affords the Corporation peaceful
and undisturbed possession of the subject matter of the lease, and such lease is
free of any liens, claims or encumbrances. Each such lease constitutes a valid
and binding obligation of, and is enforceable in accordance with its terms
against, the respective parties thereto. The Corporation has in all respects
performed the obligations required to be performed by it to date under such
leases and is not in default thereunder in any respect, and there has not
occurred any event which (whether with or without the passage of time or the
giving of notice) would constitute such a default. The Corporation does not own
any real property.
5.12 Investments in Other Persons. Except as indicated in
Schedule 5.12 attached hereto, (a) the Corporation has not made any loan or
advance to any person or entity which is outstanding on the date hereof, nor is
it committed or obligated to make any such loan or advance, and (b) the
Corporation has never owned or controlled and does not currently own or control,
directly or indirectly, any subsidiaries and has never owned or controlled and
does not
9
<PAGE> 11
currently own or control any capital stock or other ownership interest,
directly or indirectly, in any corporation, association, partnership, trust,
joint venture or other entity.
5.13 ERISA. The Corporation has not made contributions to any
pension, defined benefit or defined contribution plans for its employees which
are subject to the Federal Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). The Corporation is in compliance in all respects with all
material provisions of ERISA to the extent that the Corporation's pension,
defined benefit or defined contribution plans (if any) are subject to ERISA.
5.14 Permits and Other Rights; Compliance with Laws. The
Corporation has all franchises, permits, licenses and other rights and
privileges necessary to permit it to own its properties and to conduct its
business as presently conducted. The Corporation is in compliance in all
material respects under each, and the transactions contemplated by this
Agreement will not cause a violation under any of such franchises, permits,
licenses and other rights and privileges. The Corporation is in compliance in
all respects with all material provisions of the laws and governmental rules and
regulations applicable to its businesses, properties and assets, and to the
products and services sold by it, including, without limitation, all such rules,
laws and regulations relating to fair employment practices and public or
employee safety. The Corporation is in compliance with the Clinical Laboratories
Improvement Act of 1967, as amended.
5.15 Insurance. Schedule 5.15 attached hereto lists all
insurance policies carried by the Corporation covering its properties and
business, which, to the best of the Corporation's knowledge, are in such amounts
and with such coverages as are customarily carried by similarly situated
companies are adequate for the Corporation's operations. The Corporation is not
in default with respect to its obligations under any insurance policy maintained
by it.
5.16 Board of Directors. Except as provided in the
Stockholders' Agreement and in Schedule 5.16 attached hereto, the Corporation
has not extended any offer or promise or entered into any agreement,
arrangement, understanding or otherwise, whether written or oral, with any
person or entity by which the Corporation has agreed to allow such person or
entity to participate, in any way, in the affairs of the Board of Directors of
the Corporation, including without limitation, appointment or nomination as a
member, or right to appear at, or receive the minutes of, a meeting of the Board
of Directors of the Corporation.
5.17 Environmental Matters.
(a) The Corporation has not used, generated,
manufactured, refined, treated, transported, stored, handled, disposed,
transferred, produced, processed or released (together defined as Release) any
Hazardous Materials (as hereinafter defined) in any manner or by any means in
violation of any Environmental Laws (as hereinafter defined). To the best of the
Corporation's knowledge, except as described in Schedule 5.17(a), the
Corporation and any prior owner or tenant of the Property (as hereinafter
defined) have not Released any Hazardous Material or other pollutant or effluent
into, on or from the Property in a way which can pose a risk to human health or
the environment, nor is there a threat of such Release.
As used herein, the term Property shall include,
without limitation, land, buildings and laboratory facilities owned or leased by
the Corporation or as to which the Corporation now has any duties,
responsibilities (for clean-up, remedy or otherwise) or liabilities
10
<PAGE> 12
under any Environmental Laws, or as to which the Corporation or any subsidiary
of the Corporation may have such duties, responsibilities or liabilities because
of past acts or omissions of the Corporation or any such subsidiary or their
predecessors, or because the Corporation or any such subsidiary or their
predecessors in the past was such an owner or operator of, or bore some other
relationship with, such land, buildings and/or laboratory facilities, all as
more fully described in Schedule 5.17(a) attached hereto. The term "Hazardous
Materials" shall include, without limitation, any flammable explosives,
petroleum products, petroleum by-products, radioactive materials, hazardous
wastes, hazardous substances, toxic substances or related materials as defined
by the Environmental Laws.
(b) No notice of lien under any Environmental Laws
has been filed against any Property of the Corporation.
(c) The use of the Property, and any future
development, construction and operation of property purchased, leased or
otherwise acquired by the Corporation shall, in all respects, comply with, and
are, or if such property has not yet been purchased, leased or otherwise
acquired by the Corporation, shall be, lawful, permitted and conforming uses in
all material respects under all applicable building, fire, safety, subdivision,
zoning, sewer, environmental, securities, health, insurance and other laws,
ordinances, rules, regulations and plan approval conditions of any governmental
or public body or authority.
(d) Except as described in Schedule 5.17(d)
attached hereto, to the best of the Corporation's knowledge, the Property does
not contain: (i) asbestos in any form; (ii) urea formaldehyde foam insulation;
(iii) transformers or other equipment which contain dialectic fluid containing
levels of polychlorinated biphenyls; (iv) radon; or (v) any other chemical,
material or substance, the exposure to which is prohibited, limited or regulated
by a federal, state or local government agency, authority or body, or which,
even if not so regulated, to the best of the Corporation's knowledge after
reasonable investigation, may or could pose a hazard to the health and safety of
the occupants of the Property or the owners or occupants of property adjacent to
or in the vicinity of the Property.
(e) The Corporation has not received written notice
that the Corporation is a potentially responsible party for costs incurred at a
cleanup site or corrective action under any Environmental Laws. The Corporation
has not received any written requests for information in connection with any
inquiry by any Governmental Authority (as defined hereinafter) concerning
disposal sites or other environmental matters. As used herein, "Governmental
Authority" shall mean any nation or government, any federal, state, municipal,
local, provincial, regional or other political subdivision thereof, and any
entity or person exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, government. Schedule 5.17(e)
attached hereto identifies all locations where Hazardous Materials used in whole
or in part by the businesses of the Corporation or resulting from the
businesses, facilities or Property of the Corporation have been stored or
disposed of by or on behalf of the Corporation.
As used herein, "Environmental Laws" shall mean all
applicable federal, state and local laws, ordinances, rules and regulations that
regulate, fix liability for, or otherwise relate to, the handling, use
(including use in industrial processes, in construction, as building materials,
or otherwise), storage and disposal of hazardous and toxic wastes and
substances, and to the discharge, leakage, presence, migration, threatened
Release or Release (whether by disposal, a
11
<PAGE> 13
discharge into any water source or system or into the air, or otherwise) of any
pollutant or effluent. Without limiting the preceding sentence, the term
"Environmental Laws" shall specifically include the following federal and state
laws, as amended:
FEDERAL
Comprehensive Environmental Response,
Compensation and Liability Act of 1980,
42 U.S.C. 9601 et seq.;
Resource Conservation and Recovery Act of 1976,
42 U.S.C. 6901 et seq.;
Federal Water Pollution Control Act,
33 U.S.C. 1251 et seq.; and
Clean Air Act, 42 U.S.C. 7401 et seq.
STATE
NEW YORK ENVIRONMENTAL STATUTES
Environmental Conservation Law 1-0101 et seq.
(f) The Corporation has maintained all
environmental and operating documents and records substantially in the manner
and for the time periods required by the Environmental Laws and any other laws,
regulations or orders and has never conducted an environmental audit except as
disclosed in Schedule 5.17(f) attached hereto. For purposes of this Section
5.17(f), an environmental audit shall mean any evaluation, assessment, study or
test performed at the request of or on behalf of a Governmental Authority,
including, but not limited to, a public liaison committee, but does not include
normal or routine inspections, evaluations or assessments which do not relate to
a threatened or pending charge, restraining order or revocation of any permit,
license, certificate, approval, authorization, registration or the like issued
pursuant to the Environmental Laws and any other law, regulation or order.
(g) To the best of the Corporation's knowledge, no
part of the Property of the Corporation is (i) located within any wetlands area,
(ii) subject to any wetlands regulations, or (iii) included in or proposed for
inclusion in, or abuts any property included in or proposed for inclusion in,
the National Priority List or any similar state lists.
The Corporation understands that the foregoing representations and
warranties shall be deemed material and to have been relied upon by the
Investor. As used herein, the term "to the best of the Corporation's knowledge"
shall mean and include, (a) with respect to matters relating directly to the
Corporation and its operations, actual knowledge or that knowledge which a
prudent business person reasonably would have discovered in the management of
his or her business affairs
12
<PAGE> 14
after making reasonable inquiry and exercising due diligence with respect
thereto, and (b) with respect to external events or conditions, actual
knowledge.
5.18 Books and Records. The minute books of the Corporation
contain complete and accurate records of all meetings and other corporate
actions of its stockholders and its Board of Directors and committees thereof.
The stock ledger of the Corporation is complete and reflects all issuances,
transfers, repurchases and cancellations of shares of capital stock of the
Corporation.
5.19 Real Property Holding Company. The Corporation is not a
"real property holding company" within the meaning of Section 897 of the Code.
SECTION 6. Representations and Warranties of the Investor to the
Corporation.
Each of the Investors hereby represents and warrants to the Corporation
as follows:
(a) It is duly organized and validly existing and
has the power and authority to enter into this Agreement, and has not been
organized, reorganized or recapitalized specifically for the purpose of
acquiring the securities of the Corporation.
(b) It has adequate net worth and means of
providing for its current needs and personal contingencies to sustain a complete
loss of its investment in the Corporation.
SECTION 7. Closing Conditions.
7.1 Conditions Precedent to the Closing. The obligation of the
Investors to purchase and pay for their respective Preferred Shares at the
Closing is subject to the satisfaction of the following conditions precedent:
(a) All proceedings to have been taken and all
waivers and consents to be obtained in connection with the transactions
contemplated by this Agreement shall have been taken or obtained, and all
documents incidental thereto shall be satisfactory to the Investors and its
counsel, and the Investors and their respective counsel shall have received
copies (executed or certified, as may be appropriate) of all documents which the
investor or counsel may reasonably have requested in connection with such
transactions.
(b) All legal matters incident to the purchase of
the Preferred Shares shall be satisfactory to the respective Investor's counsel,
and the Investors shall have received from Squadron, Ellenoff, Plesent &
Sheinfeld, LLP, counsel for the Corporation, such firm's opinion addressed to
the Investors and dated the date of the Closing in substantially the form of
Exhibit D hereto.
(c) All consents, permits and approvals,
qualifications and/or registrations required to be obtained or effected under
any applicable securities or "Blue Sky" laws of any jurisdiction shall have been
obtained or effected, and the Investors shall have received from Squadron,
Ellenoff, Plesent & Sheinfeld, LLP a Blue Sky Memorandum or other confirmation
to that effect in form reasonably satisfactory to counsel for each such
Investor.
13
<PAGE> 15
(d) The representations and warranties of the
Corporation contained herein shall be true and correct on and as of the date of
such Closing with the same force and effect as though such representations and
warranties had been made on and as of such date.
(e) A duly executed Certificate in the form of
Exhibit A hereto shall have been filed with and accepted by the Secretary of
State of Delaware and shall be effective under the laws of the State of
Delaware.
(f) The Corporation shall have delivered to the
Investors a certificate or certificates, dated the Closing Date, of the
Secretary or Assistant Secretary of the Corporation certifying as to (i) the
resolutions of the Corporation's Board of Directors and stockholders authorizing
the execution and delivery of this Agreement and the Certificate, the issuance
to the Investors of their respective Preferred Shares, the execution and
delivery of such other documents and instruments as may be required by this
Agreement, and the consummation of the transactions contemplated hereby, and
certifying that such resolutions were duly adopted and have not been rescinded
or amended as of said date, and (ii) the name and the signature of the officers
of the Corporation authorized to sign, as appropriate, this Agreement and the
other documents and certificates to be delivered pursuant to this Agreement by
either the Corporation or any of its officers.
(g) The Corporation shall have delivered to the
Investors a certificate or certificates, dated the Closing Date, of the Chairman
of the Corporation certifying as to the accuracy and completeness of the
representations and warranties made by the Corporation pursuant to this
Agreement and as to the fulfillment of the conditions specified in paragraphs
(c), (e) and (f) of this Section 7.1.
(h) The Corporation shall have executed and
delivered (i) the Collaborative Research and License Agreement, of even date
herewith, between the Corporation and Roche in substantially the form of Exhibit
E hereto (the "Roche Collaboration Agreement"), (ii) the Funded Research and
License Agreement, of even date herewith, between the Corporation and CSHL in
substantially the form of Exhibit F hereto (the "CSHL Research Agreement"),
(iii) the License Agreement, of even date herewith, between the Corporation and
CSHL in substantially the form of Exhibit G hereto (the "CSHL License Agreement,
(iv) the License and Services Agreement, of even date herewith, between the
Corporation and OSI in substantially the form of Exhibit H hereto (the "OSI
License Agreement") and (v) the Stockholders' Agreement, and shall have complied
with its obligations under this Agreement required to be performed by it prior
to the Closing.
7.2 Conditions to Obligations of the Corporation. It shall be
conditions precedent to the obligations of the Corporation hereunder to be
performed at the Closing that:
(a) The representations and warranties contained
herein of the Investors hereunder shall be true and correct as of the date of
the Closing with the same force and effect as though such representations and
warranties had been made on and as of such date.
(b) Each of the Investors, as the case may be,
shall have duly executed and delivered the Roche Collaboration Agreement, the
CSHL Research Agreement, the CSHL License Agreement, the OSI License Agreement
and the Stockholders' Agreement, and shall have
14
<PAGE> 16
complied with its obligations under this Agreement required to be performed by
it prior to the Closing.
SECTION 8. Public Offering.
The Corporation agrees to use all reasonable effort to arrange for its
underwriters to offer each of (a) Roche or its designated affiliate, (b) OSI,
and (c) CSHL, the opportunity to purchase in the Corporation's initial
underwritten public offering Common Stock pursuant to an effective registration
statement under the Securities Act a number of shares representing an aggregate
investment of ** for each of Roche, OSI and CSHL. Such shares will be offered,
if at all, on the same terms offered to others purchasing in such public
offering. Roche, OSI and CSHL shall be under no obligation to purchase any or
all of such securities.
SECTION 9. Brokers or Finders.
The Corporation represents and warrants to the Investors, and each of
the Investors represents and warrants to the Corporation, that no third party
has or will have, as a result of the transactions contemplated by this
Agreement, any unsatisfied right, interest or valid claim against or upon the
Corporation or such respective Investors, respectively, for any commission, fee
or other compensation as a finder or broker because of any act or omission by
the Corporation or such respective Investor, respectively, or any agent of the
Corporation or such respective Investor, respectively.
SECTION 10. Exchanges; Lost, Stolen or Mutilated Certificates
Upon surrender by any Investor to the Corporation of Preferred Shares
or Reserved Shares purchased or acquired by such Investor hereunder, the
Corporation, at its expense, will issue in exchange therefor, and deliver to the
Investor, a new certificate or certificates representing such shares in such
denominations as may be requested by the Investor. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
any certificate representing any shares of Common Stock or Preferred Stock
purchased or acquired by the Investor hereunder and, in case of any such loss,
theft or destruction, upon delivery of any indemnity agreement satisfactory to
the Corporation, or in case of any such mutilation, upon surrender and
cancellation of such certificate, the Corporation, at its expense, will issue
and deliver to the Investor a new certificate for such shares of Common Stock or
Preferred Stock, as applicable, of like tenor, in lieu of such lost, stolen or
mutilated certificate.
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
15
<PAGE> 17
SECTION 11. Survival of Representations and Warranties.
The representations and warranties set forth in Sections 5 and 6 hereof
shall survive the Closing indefinitely except as set forth on Schedule 11.
SECTION 12. Successors and Assigns.
Except as otherwise expressly provided herein, this Agreement shall
bind and inure to the benefit of the Corporation and the Investors and the
respective permitted successors and assigns of the Investors and the permitted
successors and assigns of the Corporation. Subject to the provisions of Sections
3.1, 3.2, 3.3 and 3.10 of the Stockholders' Agreement, which are intended solely
to ensure compliance with the provisions of the Securities Act, this Agreement
and the rights and duties of any Investor set forth herein may be freely
assigned, in whole or in part, by such Investor with the prior written consent
of the other Investors. Neither this Agreement nor any of the rights or duties
of the Corporation set forth herein shall be assigned by the Corporation, in
whole or in part, without having first received the written consent of the
Investors.
SECTION 13. Entire Agreement.
This Agreement, together with the other writings referred to herein or
delivered pursuant hereto which form a part hereof, contains the entire
agreement among the parties with respect to the subject matter hereof and
amends, restates and supersedes all prior and contemporaneous arrangements or
understandings, whether written or oral, with respect thereto.
SECTION 14. Notices.
All notices, requires, consents and other communications hereunder to
any party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered, certified or
overnight mail, postage prepaid, or telecopied with confirmation copy by regular
mail, addressed or telecopied, as the case may be, to such party at the address
or telecopier number, as the case may be, set forth on Schedule 1 hereto or such
other address or telecopier number as the case may be, as may hereafter be
designated in writing by the addressee to the addressor.
All such notices, requests, consents and other communications shall be
deemed to have been received: (a) in the case of personal delivery, on the date
of such delivery; (b) in the case of mailing, on the third business day
following the date of such mailing; (c) in the case of overnight mail, on the
first business day following the date of such mailing; and (d) in the case of
facsimile transmission, when confirmed by facsimile machine report.
SECTION 15. Changes.
The terms and provisions of this Agreement may not be modified or
amended, or any of the provisions hereof waived, temporarily or permanently,
except pursuant to a writing executed by a duly authorized representative of the
Corporation and each of the Investors.
16
<PAGE> 18
SECTION 16. Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
SECTION 17. Headings.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
SECTION 18. Nouns and Pronouns.
Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice-versa.
SECTION 19. Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 20. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, excluding choice of laws rules thereof.
SECTION 21. Indemnification.
The Corporation shall indemnify, defend and hold each of the Investors
(and its respective partners, directors, officers, employees, agents and
affiliates and the directors, officers, employees and agents of such affiliates)
harmless against any and all liabilities, loss, cost or damage, together with
all reasonable costs and expenses related thereto (including reasonable legal
and accounting fees and expenses), arising from, relating to, or connected with
(i) the untruth, inaccuracy or breach of any statement, representations,
warranties or covenants of the Corporation contained herein, including, but not
limited to, all statements, representations, warranties or covenants concerning
environmental matters, and/or (ii) the Investor's involvement or association
with the Corporation and/or any actions or inactions of the Investor in
connection with its investment in or its association with the Corporation(other
than matters relating to the Collaboration Agreement), except such actions or
inactions resulting from gross negligence, willful misconduct or bad faith.
17
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
HELICON THERAPEUTICS, INC.
By: /s/
Name:
Title:
**
By: /s/
Name:
Title:
ONCOGENE SCIENCE, INC.
By: /s/
Name:
Title:
COLD SPRING HARBOR LABORATORY
By: /s/
Name:
Title:
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
18
<PAGE> 20
SCHEDULE 1
SHAREHOLDINGS OF INVESTORS
<TABLE>
<CAPTION>
PERCENTAGE OF TOTAL NUMBER
NUMBER OF SHARES OF CAPITAL
NAME AND ADDRESS OF STOCKHOLDER OF SHARES STOCK OUTSTANDING* TYPE
<S> <C> <C> <C>
ONCOGENE SCIENCE, INC. ** ** Preferred
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
COLD SPRING HARBOR LABORATORY ** ** Preferred
Hershey Building
One Bungtown Road
Cold Spring Harbor, New York
** ** ** Preferred
and
**
with a simultaneous copy to:
Hoffmann - La Roche Inc.
340 Kingsland Street
Nutley, New Jersey 07110
Attention: General Counsel
</TABLE>
- --------------
* An aggregate of ** shares of Common Stock (consisting of **
shares of Senior Common Stock and ** shares of Ordinary Common
Stock) shall be issued to certain other shareholders and such shares in
the aggregate represent approximately ** of the outstanding shares
of capital stock of the Corporation.
** This portion has been redacted pursuant to a request for confidential
treatment.
19
<PAGE> 21
SCHEDULE 5.6(a)
OBLIGATIONS OF HELICON THERAPEUTICS, INC.
Reimbursement of expenses of Cold Spring Harbor Laboratory in connection with
prosecution of certain patents pursuant to the License Agreement between the
Corporation and CSHL, in the amount of **.
The fees and disbursements of the law firm of Mintz Levin Cohn Ferris Glovsky &
Popeo PC, in the total amount of **.
The fees and disbursements of the law firm of Squadron, Ellenoff, Plesent &
Sheinfeld, LLP, in the total amount of **.
The fees and expenses of Walter Lovenberg, Ph.D., in the total amount of **.
- -------------
** This portion has been redacted pursuant to a request for confidential
treatment.
20
<PAGE> 22
SCHEDULE 5.6(b)
LIABILITIES OF HELICON THERAPEUTICS, INC.
See Schedule 5.6(a).
21
<PAGE> 23
SCHEDULE 5.6(c)
LEGAL ACTIONS AGAINST HELICON THERAPEUTICS, INC.
None.
22
<PAGE> 24
SCHEDULE 5.6(e)
AGREEMENTS BETWEEN HELICON THERAPEUTICS, INC.
AND ITS EMPLOYEES, OFFICERS, DIRECTORS OR OTHER AFFILIATES
Exclusive Consultancy Agreement, dated July 1, 1997, by and between Helicon
Therapeutics, Inc. and ** .
Exclusive Consultancy Agreement, dated July 1, 1997, by and between Helicon
Therapeutics, Inc. and ** .
License and Services Agreement, dated July 17, 1997, by and between Helicon
Therapeutics, Inc. and Oncogene Science, Inc.
License Agreement dated, July 17, 1997, by and between Helicon Therapeutics,
Inc. and Cold Spring Harbor Laboratory
Collaborative Research and License Agreement dated, July 1, 1997, by and between
Helicon Therapeutics, Inc. and **
Funded Research Agreement dated, July 1, 1997, by and between Helicon
Therapeutics, Inc. and Cold Spring Harbor Laboratory
Stockholders' Agreement, dated as of July 17, 1997, by and between Helicon
Therapeutics, Inc. and Oncogene Science, Inc., Cold Spring Harbor
Laboratory, ** , and ** .
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
23
<PAGE> 25
SCHEDULE 5.6(h)
HELICON THERAPEUTICS, INC. EMPLOYEE BENEFIT PLAN
None.
24
<PAGE> 26
SCHEDULE 5.6(k)
HELICON THERAPEUTICS, INC. UNAUDITED FINANCIAL STATEMENTS ATTACHED
- --------------------------------------------------------------------------------
G:\STAFF\SG\HELICON\[FINANCIAL STATEMENTS 0630 xls]TB 7/8/97:1632
HELICON THERAPEUTICS, INC.
STATEMENT OF OPERATIONS
AS OF 6/30/97 (SCHEDULE CLOSING DATE)
- --------------------------------------------------------------------------------
(Unaudited)
REVENUE **
Gen'l & Admin **
Allocated G&A **
NET G&A **
Patent Expense **
Allocated G&A **
TOTAL OPERATING EXPENSE **
Interest Income **
NET LOSS **
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
25
<PAGE> 27
- --------------------------------------------------------------------------------
G:\STAFF\SG\HELICON\[FINANCIAL STATEMENTS 0630 xls]TB 7/8/97:1632
HELICON THERAPEUTICS, INC.
BALANCE SHEET
AS OF 6/30/97 (SCHEDULE CLOSING DATE)
- --------------------------------------------------------------------------------
(Unaudited)
Cash **
Accts Rec'v **
Org Costs **
TOTAL ASSETS **
Accts Pay **
Unearned Rev **
Total Liabilities **
Preferred Stock **
Common Stock **
Paid in Capital **
Retained Earnings **
TOTAL LIAB. & EQUITY **
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
26
<PAGE> 28
- --------------------------------------------------------------------------------
G:\STAFF\SG\HELICON\[FINANCIAL STATEMENTS 0630 xls]TB 7/8/97:1632
HELICON THERAPEUTICS, INC.
LIST OF OBLIGATIONS
AS OF 6/30/97 (SCHEDULE CLOSING DATE)
- --------------------------------------------------------------------------------
CSH - Patent expense **
Legal fees - Squadron Ellenoff **
Legal fees - Mintz-Levin **
Walt Lovenberg Consulting & Travel **
**
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
27
<PAGE> 29
SCHEDULE 5.6(l)
CHANGES IN CONDITIONS OF HELICON THERAPEUTICS, INC.
None.
28
<PAGE> 30
SCHEDULE 5.6(m)
HELICON THERAPEUTICS, INC. EMPLOYEES/DIRECTORS/CONSULTANTS
WHO ARE SHAREHOLDERS NOT SUBJECT TO RESTRICTIONS
None at this time.
29
<PAGE> 31
SCHEDULE 5.9
HELICON THERAPEUTICS, INC. INTELLECTUAL PROPERTY RIGHTS
A. RIGHTS POSSESSED BY THE CORPORATION
Rights pursuant to License and Services Agreement, dated, as of July 17, 1997,
by and between Helicon Therapeutics, Inc. and Oncogene Science, Inc.
Rights pursuant to License Agreement dated, as of July 17, 1997, by and between
Helicon Therapeutics, Inc. and Cold Spring Harbor Laboratory
B. OTHER RIGHTS NECESSARY TO THE CORPORATION'S BUSINESS
None.
C. HELICON THERAPEUTICS, INC. RIGHTS SUBJECT TO DISPUTE
None.
D. ROYALTY OBLIGATIONS FOR RIGHTS
None.
E. LICENSES GRANTED BY THE CORPORATION
Other than to Roche pursuant to the Collaborative Research and License
Agreement between the Corporation and Roche, none.
30
<PAGE> 32
SCHEDULE 5.11
HELICON THERAPEUTICS, INC. ASSETS & LEASES UNDER DISPUTE
31
<PAGE> 33
SCHEDULE 5.12
A. LOANS MADE BY THE CORPORATION
None.
B. ENTITIES CONTROLLED BY THE CORPORATION
None.
32
<PAGE> 34
SCHEDULE 5.15
INSURANCE POLICIES HELD BY HELICON THERAPEUTICS, INC.
CERTIFICATE OF INSURANCE
<TABLE>
<S> <C>
ISSUE DATE (MM/DD/YY)
[ ] 07/10/97
----------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND
The Treiber Group LLC CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
P.O. Box 7975 CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
Garden City, NY 11530-7975 AFFORDED BY THE POLICES BELOW.
----------------------------------------------------------------
COMPANIES AFFORDING COVERAGE
----------------------------------------------------------------
COMPANY A ST. PAUL FIRE & MARINE
LETTER
----------------------------------------------------------------
- ----------------------------------------------------
INSURED COMPANY B KEMPER INSURANCE
LETTER
----------------------------------------------------------------
Helicon Therapeutics, Inc. COMPANY C
LETTER
----------------------------------------------------------------
106 Charles Lindbergh Boulevard COMPANY D
LETTER
----------------------------------------------------------------
----------------------------------------------------------------
Uniondale, NY 11553 COMPANY E
LETTER
- ---------------------------------------------------- ----------------------------------------------------------------
</TABLE>
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAME ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY
REQUIREMENT TERM OR CONDITION ANY CONTRACT OR OTHER DOCUMENTS WITH RESPECT TO
WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY
THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
<TABLE>
<CAPTION>
POLICY POLICY
EFFECTIVE DATE EXPIRATION DATE
TYPE OF INSURANCE POLICY NUMBER (MM/DD/YY) (MM/DD/YY) LIMITS
<S> <C> <C> <C> <C> <C>
GENERAL LIABILITY TE09000489 10/26/96 10/26/97 General aggregate $ 2,000,000
X COMM. GENERAL LIABILITY Products-Compact Agg. $ 1,000,000
__ CLAIMS MADE __ OCCUR Personal & Adv. Injury $ 1,000,000
__ OWNERS & CONTRACTOR'S PROF. Ea. Occurrence $ 1,000,000
__ Fire Damage (Any one rm.) $ 100,000
--------------------------. Med Exp. (Any one person) $ 5,000
AUTOMOBILE LIABILITY TE09000489 10/26/96 10/26/97 Combined Single Limit $ 1,000,000
X ANY AUTO
__ ALLOWED AUTOS Bodily Injury
__ SCHEDULED AUTOS (Per Person)
X HIRED AUTOS
X NON-OWNED AUTOS Bodily Injury
__ GARAGE LIABILITY (Per Accident)
Property Damage
EXCESS LIABILITY TE09000489 10/26/96 10/26/97 Each Occurrence $10,000,000
X UMBRELLA FORM
__ OTHER THAN UMBRELLA FORM Aggregate $10,000,000
WORKERS COMPENSATION AND EMPLOYER'S 3BR055261-00 10/12/96 10/12/97 Statutory Limits
LIABILITY Each Accident $ 1,000,000
Disease-Policy Limit $ 1,000,000
Disease-Each Employee $ 1,000,000
</TABLE>
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
<TABLE>
<CAPTION>
CERTIFICATE HOLDER CANCELLATION
<S> <C>
HELICON THERAPEUTICS, INC. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE
106 CHARLES LINDBERGH BOULEVARD THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE SHALL
UNIONDALE, NY 11553 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR
REPRESENTATIVES
</TABLE>
33
<PAGE> 35
SCHEDULE 5.16
AGREEMENTS RELATING TO BOARD OF DIRECTORS OF HELICON THERAPEUTICS, INC.
Stockholders' Agreement, dated as of July 17, 1997, by and between Helicon
Therapeutics, Inc. and Oncogene Science, Inc., Cold Spring Harbor Laboratory, **
, and ** .
- -------------------
** This portion has been redacted pursuant to a request for confidential
treatment.
34
<PAGE> 36
SCHEDULE 5.17(a)
HAZARDOUS MATERIALS USED BY HELICON THERAPEUTICS, INC.
None.
35
<PAGE> 37
SCHEDULE 5.17(d)
HAZARDOUS MATERIALS ON THE CORPORATION'S PROPERTY
None.
36
<PAGE> 38
SCHEDULE 5.17(e)
HELICON THERAPEUTICS, INC. HAZARDOUS MATERIALS SITES
None.
37
<PAGE> 39
SCHEDULE 5.17(f)
HELICON THERAPEUTICS, INC. ENVIRONMENTAL AUDITS
None.
38
<PAGE> 40
SCHEDULE 11
The representations and warranties set forth in Sections 5 and 6 of the
Agreement shall survive the Closing; provided, however, that they shall not be
deemed to be continuing representations with respect to states of fact after the
Closing.
39
<PAGE> 41
EXHIBIT A
CERTIFICATE OF INCORPORATION OF HELICON THERAPEUTICS, INC.
ARTICLE I
Name
The name of the corporation is HELICON THERAPEUTICS, INC.
ARTICLE II
Registered Agent
The name and address of the Corporation's registered agent in the State
of Delaware is The Corporation Service Company, 1013 Centre Road, in the City of
Wilmington, County of New Castle, Delaware 19805-1297.
ARTICLE III
Purpose
The Corporation is organized to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE IV
Capital Stock
(a) Authorization: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 5,000,000, consisting of
2,000,000 shares of Preferred Stock, par value $.001 per share (the "Preferred
Stock"), and 3,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock").
(b) The Preferred Stock may be issued in any number of series,
including, without limitation, the Series A Stock (as such term is defined in
Section A.1) and any other series designated by the Board of Directors of the
Corporation (the "Board of Directors") pursuant to Section B.1, subject to
Section A.5 hereof.
(c) The Common Stock may be issued in two series: the Senior Common
Stock (as such term is defined in Section D.1), and Ordinary Common Stock (as
such term is defined in Section C.1).
40
<PAGE> 42
PART A. SERIES A CONVERTIBLE PREFERRED STOCK
A.1 Designation and Amount. The stock of the Corporation shall include
the following series of Preferred Stock: 1,500,000 shares of Series A
Convertible Preferred Stock, par value $.001 per share (the "Series A Stock").
The powers, terms, conditions, designations, preferences and privileges,
relative, participating, optional and other special rights, and qualifications,
limitations and restrictions, if any, of the Series A Stock shall be as set
forth herein.
A.2 Ranking. The Corporation's Series A Stock shall rank, as to
dividends and upon Liquidation (as defined in Section A.4(b) hereof), senior and
prior to the Corporation's Common Stock and to all other classes or series of
stock issued by the Corporation, except as otherwise approved by the affirmative
vote or consent of the holders of shares of Series A Stock pursuant to Section
A.5(c) hereof.
A.3 Dividend Provisions.
A.3(a) The holders of shares of Series A Stock shall be
entitled to receive, when and as declared or paid by the Board of Directors on
any shares of Series A Stock, out of funds legally available for that purpose,
dividends and distributions (whether in cash, property or securities of the
Corporation, including a subscription or other rights to acquire securities of
the Corporation) as set forth herein.
Dividends shall be payable on the shares of the Series A Stock
at the rate per share (based upon a liquidation preference of $2.50 per share)
of 10% per annum (the "Accruing Dividends"). Accruing Dividends will be payable
when, as and if declared by the Board of Directors. Only for purposes of Section
A.4 below, the Accruing Dividends shall accrue from day to day, whether or not
earned or declared. Except as provided in the immediately preceding sentence,
the Accruing Dividends shall not accrue and shall not be cumulative and the
holders of the Series A Stock shall have no right thereto except and if to the
extent declared by the Board of Directors, in its discretion.
No dividends (other than in Common Stock) shall be declared or
paid or set apart for payment on the Common Stock, unless fully accrued
dividends on the Series A Stock were paid for the period ending prior to the
date of payment of such Common Stock dividend. When dividends are not paid in
full upon the Series A Stock, all dividends on the Series A Stock shall be
declared pro rata among the shares of Series A Stock outstanding. Any accrued
but unpaid dividends on any shares of Series A Stock converted into Common Stock
under Section A.4 hereof shall no longer be payable upon such conversion.
41
<PAGE> 43
Whenever any dividend (other than a dividend in Common Stock
on Common Stock), whether in cash or property or in securities of the
Corporation (or subscription or other rights to purchase or acquire securities
of the Corporation), may be declared or paid on: (i) any shares of the Common
Stock, the Board of Directors shall also declare and pay a dividend on the same
terms, at the same rate and in like kind upon each share of the Series A Stock
then outstanding so that all outstanding shares of Series A Stock will
participate in such dividend ratably with such shares of Common Stock
(calculated as provided in Section A.3(b) hereof); or (ii) any shares of
Preferred Stock (other than the Series A Stock), the Board of Directors shall
also declare and pay a dividend on the same terms, at the same or equivalent
rate (based on the number of shares of Common Stock into which such Preferred
Stock is then convertible, if applicable, or, otherwise, the relative
liquidation preference per share, as compared with the Series A Stock then
outstanding).
A.3(b) In connection with any dividend declared or paid
hereunder, each share of Series A Stock shall be deemed to be that number of
shares (including fractional shares) of Common Stock into which it is then
convertible, rounded up to the nearest one-tenth of a share. No fractional
shares of capital stock shall be issued as a dividend hereunder. The Corporation
shall pay a cash adjustment for any such fractional interest in an amount equal
to the Current Market Price thereof (as defined in Section A.6(d)(vii) hereof)
on the last Business Day (as defined in Section A.7 hereof) immediately
preceding the date for payment of dividends.
A.4 Liquidation Rights.
A.4(a) With respect to rights on Liquidation (as defined in
Section A.4(b) hereof), the Series A Stock shall rank equally with each other
and senior and prior to the Corporation's Common Stock and to all other classes
or series of stock issued by the Corporation, except as otherwise approved by
the affirmative vote or consent of the holders of Series A Stock pursuant to
Section A.5(c) hereof.
A.4(b) In the event of any liquidation, dissolution or
winding-up of the affairs of the Corporation (collectively, a "Liquidation"),
the holders of shares of Series A Stock then outstanding (the "Series A
Stockholders") shall be entitled to receive out of the assets of the Corporation
legally available for distribution to its stockholders, whether from capital,
surplus or earnings, before any payment shall be made to the holders of Common
Stock or any other class or series of stock ranking on Liquidation junior to
such Series A Stock, an amount per share equal to the Original Purchase Price
(as defined in Section A.7 hereof), plus an amount equal to any declared but
unpaid dividends thereon pursuant to Section A.3(a) hereof.
A.4(c) If, upon any Liquidation, the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the
Series A Stockholders the full amount as to which each of them shall be
entitled, then the Series A Stockholders shall share ratably in any distribution
of assets according to the respective amounts which would be payable to them in
respect of the shares held upon such distribution if all amounts payable on or
with respect to such shares were paid in full. For purposes of calculating the
amount of any payment to be paid upon any such Liquidation, each share of Series
A Stock shall be deemed to be that number of shares (including fractional
shares) of Common Stock into which it is then convertible, rounded to the
nearest one-tenth of a share.
42
<PAGE> 44
A.4(d) In the event of any Liquidation, after payment shall
have been made to the Series A Stockholders of the full amount per share to
which they shall be entitled pursuant to Section A.4(b), the Senior Common
Stockholders shall be entitled to receive an amount per share equal (and in like
kind) to the Original Purchase Price per share of the Series A Stock.
If, upon any Liquidation, the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the
Senior Common Stockholders the full amounts to which they shall be entitled
pursuant to the next preceding sentence, the holders of the Senior Common Stock
shall share ratably in any distribution of assets according to the respective
preferential amounts fixed for the Senior Common Stock (pursuant to Section
A.4(d)) which would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full.
A.4(e) In the event of any Liquidation, after payments shall
have been made first to the Series A Stockholders and the Senior Common
Stockholders, the Series A Stockholders and the Senior Common Stockholders, as a
class, shall be entitled to share ratably (calculated with respect to such
Series A Stock as provided in the next sentence) with the Common Stockholders in
all remaining assets of the Corporation available for distribution to its
stockholders. For purposes of calculating the amount of any payment to be paid
upon any such Liquidation, each share of such Series A Stock shall be deemed to
be that number of shares (including fractional shares) of Common Stock into
which it is then convertible, rounded to the nearest one-tenth of a share.
A.4(f)(i) In the event of and simultaneously with the closing
of an Event of Sale (as hereinafter defined), the Corporation shall (unless
waived pursuant to Section A.4(f)(v) or otherwise prevented by law) redeem all
of the shares of Series A Stock then outstanding for a cash amount per share
determined as set forth herein (the "Special Liquidation Price," said redemption
being referred to herein as a "Special Liquidation"), provided that each Series
A Stockholder shall retain the right to convert Series A Stock into Common Stock
pursuant to Section A.6 at any time prior to the Special Liquidation Date (as
defined below).
For all purposes of this Section A.4(f), the Special
Liquidation Price shall be equal to that amount per share which would be
received by each Series A Stockholder if, in connection with an Event of Sale,
all the consideration paid in exchange for the assets or the shares of capital
stock (as the case may be) of the Corporation were actually paid to and received
by the Corporation and the Corporation were immediately thereafter liquidated
and its assets distributed pursuant to Sections A.4(a) through (e) hereof. The
date upon which the Special Liquidation shall occur is sometimes referred to
herein as the "Special Liquidation Date."
A.4(f)(ii) At any time on or after the Special Liquidation
Date, a Series A Stockholder shall be entitled to receive the Special
Liquidation Price for each such share of Series A Stock owned by such holder.
Subject to the provisions of Section A.4(f)(iii) hereof, payment of the Special
Liquidation Price will be made upon actual delivery to the Corporation or its
transfer agent of the certificate representing such shares of Series A Stock.
A.4(f)(iii) If on the Special Liquidation Date less than all
the shares of Series A Stock then outstanding may be legally redeemed by the
Corporation, the Special Liquidation
43
<PAGE> 45
shall be pro rata with respect to such Series A Stock based upon the number of
outstanding shares of Series A Stock then owned by each holder thereof.
A.4(f)(iv) On and after any Special Liquidation Date, all
rights in respect of the shares of Series A Stock to be redeemed shall cease and
terminate except the right to receive the applicable Special Liquidation Price
as provided herein, and such shares of Series A Stock shall no longer be deemed
to be outstanding, whether or not the certificates representing such shares of
Series A Stock have been received by the Corporation; provided, however, that,
if the Corporation defaults in the payment of the Special Liquidation Price with
respect to any Series A Stock, the rights of the holder(s) thereof with respect
to such shares of Series A Stock shall continue until the Corporation cures such
default.
A.4(f)(v) Anything contained herein to the contrary
notwithstanding, the provisions of this Section A.4(f) may be waived by the
holders of a majority in voting power of the shares of Series A Stock then
outstanding by delivery of written notice of waiver to the Corporation prior to
the closing of any Event of Sale, in which event the Corporation shall not
redeem any shares of Series A Stock pursuant to this Section A.4(f).
A.4(f)(vi) Any notice required to be given to the holders of
shares of Series A Stock pursuant to Section A.6(f) hereof in connection with an
Event of Sale shall include a statement by the Corporation of (A) the Special
Liquidation Price which each Series A Stockholder shall be entitled to receive
upon the occurrence of a Special Liquidation under this Section A.4(f) and (B)
the extent to which the Corporation will, if at all, be legally prohibited from
paying each holder of Series A Stock the Special Liquidation Price.
A.4(f)(vii) For purposes of this Section A.4(f), an "Event of
Sale" shall mean (A) the merger or consolidation of the Corporation into or with
another corporation, partnership, joint venture, trust or other entity, or the
merger or consolidation of any corporation into or with the Corporation (in
which consolidation or merger the stockholders of the Corporation receive
distributions of cash or securities as a result of such consolidation or merger
in complete exchange for their shares of capital stock of the Corporation), or
(B) the sale or other disposition of all or substantially all the assets of the
Corporation, unless, upon consummation of such merger, consolidation or sale of
assets, the holders of voting securities of the Corporation immediately prior to
such transaction continue to own directly or indirectly not less than a majority
of the voting power of the surviving corporation.
A.5 Voting
A.5(a) In addition to any other rights provided for herein or
by law, the Series A Stockholders shall be entitled to vote, together with the
Common Stockholders as one class, on all matters as to which Common Stockholders
shall be entitled to vote, in the same manner and with the same effect as such
Common Stockholders. In any such vote, each share of Series A Stock shall
entitle the holder thereof to the number of votes per share that equals the
number of shares of Common Stock (including fractional shares) into which each
such share of Series A Stock is then convertible, rounded up to the nearest
one-tenth of a share.
A.5(b)(i) In addition to the rights specified in Section
A.5(a), (A) the holders of a majority in voting power of the Series A Stock,
voting as a separate class, shall have the
44
<PAGE> 46
exclusive right to elect three members of the Board of Directors of the
Corporation ("Series A Directors"). Roche Finance, Ltd. ("Roche") shall have the
right to designate one Series A designated by Roche for so long as Roche owns at
least 50% of the shares of Series A Preferred Stock originally issued to it by
the Corporation (subject to adjustment for stock splits, stock dividends, stock
combinations, recapitalizations and like occurrences) or the Collaboration
Agreement (as defined in Section A.5(b)(iii)) is in effect and Roche owns any
shares of the Corporation's stock and each of Oncogene Science, Inc. ("OSI") and
Cold Spring Harbor Laboratory ("CSHL") shall have the right to designate one
Series A Director and one other member of the Board of Directors each, for so
long as OSI and CSHL, respectively, own at least 50% of the shares of Series A
Preferred Stock originally issued to it by the Corporation (subject to
adjustment for stock splits, stock dividends, stock combinations,
recapitalizations and like occurrences). In any election of Series A Directors
pursuant to this Section A.5(b), each Series A Stockholder shall be entitled to
one vote for each share of the Series A Stock held, and no stockholder shall be
entitled to cumulate its votes by giving one candidate more than one vote per
share. The exclusive voting right of the Series A Stockholders, contained in
this Section A.5(b), may be exercised at a special meeting called as provided in
accordance with the By-laws of the Corporation, at any annual or special meeting
of the stockholders of the Corporation, or by written consent of such
stockholders in lieu of a meeting. The directors elected pursuant to this
Section A.5(b) shall serve from the date of their election and qualification
until their successors have been duly elected and qualified.
A.5(b)(ii) A vacancy in the directorships to be elected by the
Series A Stockholders pursuant to Section A.5(b)(i) may be filled only by a vote
at a meeting called in accordance with the By-laws of the Corporation or written
consent in lieu of such meeting of the holders of at least a majority in voting
power of such Series A Stock.
45
<PAGE> 47
A.5(b)(iii) The rights specified in this Section A.5(b) shall
expire upon the later of: (A) the consummation of a firm commitment underwritten
public offering of Common Stock of the Corporation registered under the
Securities Act of 1933; and (B) the expiration of the Collaborative Research and
License Agreement entered into as of July 1, 1997, by and between Hoffmann-La
Roche Inc. ("Roche") and the Corporation (the "Collaboration Agreement").
A.5(c) The Corporation shall not, without the affirmative
approval of the holders of the shares representing seventy percent (70%) of the
voting power of the Series A Stock then outstanding (determined as set forth in
the second sentence of Section A.5(a) hereof), acting separately from the
holders of Common Stock or any other securities of the Corporation, given by
written consent in lieu of a meeting or by vote at a meeting called for such
purpose, for which meeting or approval by written consent timely and specific
notice (a "Notice") shall have been given to each holder of such Series A Stock,
in the manner provided in the By-laws of the Corporation:
(i) sell, abandon, transfer, lease or otherwise dispose of all
or substantially all of its properties or assets;
(ii) purchase, lease or otherwise acquire all or substantially
all of the assets or any interest of another entity;
(iii) except as otherwise required by this Certificate of
Incorporation, declare or pay any dividend or make any distribution with respect
to shares of its capital stock (whether in cash, shares of capital stock or
other securities or property);
(iv) merge or consolidate with or into, or permit any
subsidiary to merge or consolidate with or into, any other corporation,
corporations or other entity or entities;
(v) voluntarily dissolve, liquidate or wind-up or carry out
any partial liquidation or distribution or transaction in the nature of a
partial liquidation or distribution;
(vi) except as otherwise required by this Certificate of
Incorporation or in any agreements approved by the Board of Directors with a
director, officer, employee, consultant or independent contractor of or to the
Corporation providing for the repurchase of any of its capital stock owned by
such director, officer, employee, consultant or independent contractor at the
option of the Corporation; provided that any such agreement is either
(A) set forth on Schedule 5.2 of the Convertible
Preferred Stock Purchase Agreement (as defined in
Section A.7), or
46
<PAGE> 48
(B) entered into pursuant to any stock plan which has
been adopted by the Corporation and approved by the
Board of Directors and by the holders of seventy
percent (70%) of the voting power of the Series A
Stock then outstanding (including any outstanding
shares of Common Stock issued upon conversion
thereof), and the form of agreement under any stock
plan is satisfactory in form and in substance (except
for immaterial changes thereto made from time to time
by officers of the Corporation) to the Board of
Directors and to the holders of seventy percent (70%)
of the voting power of the Series A Stock then
outstanding (including any outstanding shares of
Common Stock issued upon conversion thereof);
either make any payment on account of the purchase, redemption or other
retirement of any share of capital stock of the Corporation, or distribute to
Common Stockholders shares of the Corporation's capital stock (other than Common
Stock) or other securities of other entities, evidences of indebtedness issued
by the Corporation or other entities, or other assets or options or rights
(excluding options to purchase and rights to subscribe or shares of Common Stock
or the securities of the Corporation convertible into or exchangeable for shares
of Common Stock);
(vii) in any manner alter or change the designations, powers,
preferences, rights, qualifications, limitations or restrictions of the Series A
Stock;
(viii) take any action to cause any amendment, alteration or
repeal of any of the provisions of this Certificate of Incorporation or the
By-laws of the Corporation, which amendment, alteration or repeal adversely
affects the powers, preferences or rights pertaining to the Series A Stock;
(ix) except for the issuance of capital stock or other
securities constituting shares of Excluded Stock (as defined in Section
A.6(d)(ii) below), authorize, designate, create, issue or agree to issue any
equity or debt security of the Corporation or any security, right, option or
warrant convertible into, or exercisable or exchangeable for, shares of the
capital stock of the Corporation or any capitalized lease with an equity feature
with respect to the capital stock of the Corporation;
(x) adopt, approve, amend or modify any stock option plan or
stock plan of the Corporation or adopt, approve, amend or modify the form of any
stock option plan, stock agreement or restricted stock purchase agreement, or
amend or modify any stock option plan or restricted stock purchase agreement
entered into between the Corporation and its employees, directors or
consultants, except for immaterial changes made thereto from time to time by
officers of the Corporation;
47
<PAGE> 49
(xi) accelerate the vesting schedule or exercise date or dates
of any such options or in any stock option agreement or restricted stock
purchase agreement entered into between the Corporation and its directors,
officers, employees, consultants or independent contractors, or waive or modify
the Corporation's repurchase rights with respect to any share of the
Corporation's repurchase rights with respect to any share of the Corporation's
stock issuable pursuant to any restricted stock purchase agreement entered into
between the Corporation and its directors, officers, employees, consultants or
independent contractors; or
(xii) grant any stock options with an exercise price per share
of less than the fair market value of such share on the date of such grant (as
determined by the Board of Directors of the Corporation) or issue or sell
capital stock of the Corporation pursuant to restricted stock awards or
restricted stock purchase agreements at a price per share less than the fair
market value of such share on the date of such issuance or sale (as determined
by the Board of Directors of the Corporation).
A.6 Conversion.
A.6(a)(i) Any Series A Stockholder shall have the right, at
any time or from time to time, to convert any or all of its Series A Stock into
that number of fully paid and nonassessable shares of Ordinary Common Stock for
each share of Series A Stock so converted equal to the quotient of the Original
Purchase Price for such share divided by the Conversion Price for such share (as
defined in Section A.6(d) hereof), as last adjusted and then in effect, rounded
up to the nearest one-tenth of a share; provided, however, that cash shall be
paid in lieu of the issuance of fractional shares of Common Stock, as provided
in Section A.6(c)(ii) hereof.
A.6(a)(ii) Any Series A Stockholder who exercises the right to
convert shares of Series A Stock into shares of Common Stock, pursuant to this
Section A.6, shall be entitled to payment of all declared but unpaid dividends
payable with respect to such Series A Stock pursuant to Section A.3(a) herein,
up to and including the Conversion Date (as defined in Section A.6(b)(ii)
hereof).
A.6(b)(i) Any Series A Stockholder may exercise the right to
convert such shares into Common Stock pursuant to this Section A.6 by delivering
to the Corporation during regular business hours, at the office of the
Corporation or any transfer agent of the Corporation or at such other place as
may be designated by the Corporation, the certificate or certificates for the
shares to be converted (the "Series A Certificate"), duly endorsed or assigned
in blank to the Corporation (if required by it).
A.6(b)(ii) Each Series A Certificate shall be accompanied by
written notice stating that such holder elects to convert such shares and
stating the name or names (with address) in which the certificate or
certificates for the shares of Common Stock (the "Common Certificate") are to be
issued. Such conversion shall be deemed to have been effected on the date when
such delivery is made, and such date is referred to herein as the "Conversion
Date."
A.6(b)(iii) As promptly as practicable thereafter, the
Corporation shall issue and deliver to or upon the written order of such holder,
at the place designated by such holder, a certificate or certificates for the
number of full shares of Common Stock to which such holder is entitled and a
check or cash in respect of any fractional interest in any shares of Common
Stock,
48
<PAGE> 50
as provided in Section A.6(c)(ii) hereof, payable with respect to the shares so
converted up to and including the Conversion Date.
A.6(b)(iv) The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
holder of record of Common Stock on the applicable Conversion Date, unless the
transfer books of the Corporation are closed on such Conversion Date, in which
event the holder shall be deemed to have become the stockholder of record on the
next succeeding date on which the transfer books are open; provided that the
Conversion Price shall be that Conversion Price in effect on the Conversion
Date.
A.6(b)(v) Upon conversion of only a portion of the number of
shares covered by a Series A Certificate, the Corporation shall issue and
deliver to or upon the written order of the holder of such Series A Certificate,
at the expense of the Corporation, a new certificate covering the number of
shares of the Series A Stock representing the unconverted portion of the Series
A Certificate, which new certificate shall entitle the holder thereof to all the
rights, powers and privileges of a holder of such shares.
A.6(c)(i) If a Series A Stockholder shall surrender more than
one share of Series A Stock for conversion at any one time, then the number of
full shares of Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of shares of Series A Stock so surrendered.
A.6(c)(ii) No fractional shares of Common Stock shall be
issued upon conversion of Series A Stock. The Corporation shall pay a cash
adjustment for any such fractional interest in an amount equal to the Current
Market Price thereof on the Conversion Date, as determined in accordance with
Section A.6(d)(vii) hereof.
A.6(d) For all purposes of this Part A, the "Conversion Price"
with respect to the Series A Stock shall be equal to the applicable Original
Purchase Price (as hereinafter defined) immediately after such issuance with
respect to each such share of Series A Stock, subject to adjustment from time to
time as follows:
A.6(d)(i) If the Corporation shall, at any time or from time
to time after the applicable Original Issuance Date, issue any shares of Common
Stock (which term, for purposes of this Section A.6(d)(i), including all
subsections thereof, shall be deemed to include all other securities convertible
into, or exchangeable or exercisable for, shares of Common Stock (including, but
not limited to, Series A Stock) or options to purchase or other rights to
subscribe for such convertible or exchangeable securities, in each case other
than Excluded Stock (as hereinafter defined)), for a consideration per share
less than the applicable Conversion Price in effect immediately prior to the
issuance of such Common Stock or other securities (a "Dilutive Issuance"); then
the Conversion Price for Series A Stock in effect immediately prior to each such
Dilutive Issuance shall automatically be lowered to a price (calculated to the
nearest cent) determined by multiplying such Conversion Price by a fraction:
(A) the numerator of which shall be (1) the number of
shares of Common Stock outstanding immediately prior
to such issue plus (2) the number of shares of Common
Stock which the aggregate consideration received or
to
49
<PAGE> 51
be received by the Corporation in such Dilutive
Issuance so issued would purchase at such Conversion
Price; and
(B) the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior
to such issue plus the number of such additional
shares of Common Stock so issued in such Dilutive
Issuance;
provided that (i) for the purpose of this Section A.6(d)(i), all shares of
Common Stock issuable upon exercise, exchange or conversion of options,
exchangeable or convertible securities outstanding immediately prior to such
issue shall be deemed to be outstanding and (ii) the number of shares of Common
Stock deemed issuable upon exercise, exchange or conversion of such outstanding
options, exchangeable and convertible securities shall not give effect to any
adjustments to the conversion price or conversion rate of such options or
convertible securities resulting from the issuance of additional shares of
Common Stock that is the subject of this calculation.
For the purposes of any adjustment of the Conversion Price
pursuant to this Section A.6(d)(i), the following provisions shall be
applicable:
A.6(d)(i)(A) In the case of the issuance of Common Stock in
whole or in part for cash, the consideration shall be deemed to be the amount of
cash paid therefor after deducting therefrom any discounts, commissions or other
expenses allowed, paid or incurred by the Corporation for any underwriting or
otherwise in connection with the issuance and sale thereof, plus the value of
any property other than cash received by the Corporation, determined as provided
in Section A.6(d)(i)(B) hereof.
A.6(d)(i)(B) In the case of the issuance of Common Stock for a
consideration in whole or in part in property other than cash, the value of such
property other than cash shall be deemed to be the fair market value of such
property as determined in good faith by the Board of Directors, irrespective of
any accounting treatment; provided, however, that such fair market value of such
property as determined by the Board of Directors shall not exceed the aggregate
Current Market Price (as defined in Section A.6(d)(vii) hereof) of the shares of
Common Stock or such other securities being issued, less any cash consideration
paid for such shares, determined as provided in Section A.6(d)(i)(A) hereof.
A.6(d)(i)(C) In the case of the issuance of options or other
rights to purchase or subscribe for Common Stock or the issuance of securities
by their terms convertible into or exchangeable or exercisable for Common Stock
or options to purchase or other rights to subscribe for such convertible or
exchangeable or exercisable securities:
A.6(d)(i)(C)(1) the aggregate maximum number of shares of
Common Stock deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the consideration
(determined in the manner provided in Sections A.6(d)(i)(A) and(B) hereof), if
any, received by the Corporation upon the issuance of such options or rights
plus the minimum purchase price provided in such options or rights for the
Common Stock covered thereby (the consideration in each case to be determined in
the manner provided in Sections A.6(d)(i)(A) and (B) hereof);
50
<PAGE> 52
A.6(d)(i)(C)(2) the aggregate maximum number of shares of
Common Stock deliverable upon conversion of, or in exchange for, any such
convertible or exchangeable securities or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities
and subsequent conversion or exchange thereof shall be deemed to have been
issued at the time such securities were issued or such options or gifts were
issued and for a consideration equal to the consideration received by the
Corporation for any such securities and related options or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Corporation upon
the conversion or exchange of such securities or the exercise of any related
options or rights (the consideration in each case to be determined in the manner
provided in Sections A.6(d)(i)(A) and (B) hereof).
A.6(d)(i)(C)(3) if there is any change in the exercise price
of, or number of shares deliverable upon exercise of, any such options or gifts
or upon the conversion or exchange of any such convertible or exchangeable
securities (other than a change resulting from the antidilution provisions
thereof), then the Conversion Price shall automatically be readjusted to the
Conversion Price that would have been obtained had such options, gifts or
securities been issued or made with such changes as hereinbefore referred to;
and
A.6(d)(i)(C)(4) upon the expiration of any such options or
rights or the termination of any such rights to convert or exchange such
convertible or exchangeable securities, the Conversion Price shall be
automatically readjusted to the Conversion Price that would have obtained had
such options, rights or convertible or exchangeable securities not been issued.
51
<PAGE> 53
A.6(d)(ii) "Excluded Stock" shall mean:
A.6(d)(ii)(A) Shares of Common Stock issued upon conversion of
any shares of Series A Stock or as a dividend or distribution on the Series A
Stock.
A.6(d)(ii)(B) Common Stock issued or issuable to officers,
directors or employees of or consultants or independent contractors to the
Corporation, pursuant to any written agreement, plan or arrangement, to
purchase, or rights to subscribe for, such Common Stock, including Common Stock
issued under any of the Corporation's stock plans and Common Stock issued or
issuable to certain scientists and employees of Cold Spring Harbor Laboratory.
A.6(d)(ii)(C) Any securities issued pursuant to the
acquisition of another corporation by the Corporation by merger or purchase of
all or substantially all assets of that corporation whereby the Corporation owns
not less than fifty-one percent (51%) of the voting power or assets of such
corporation following such merger or purchase of all or substantially all of
such corporation's assets which acquisition has been approved in accordance with
this Certificate of Incorporation;
A.6(d)(iii) If the number of shares of Common Stock
outstanding at any time after the Original Issuance Date (as hereinafter
defined) is increased by a stock dividend payable in shares of Common Stock or
by a subdivision or split-up of shares of Common Stock, then, following the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend, subdivision or split-up, the Conversion Price shall
be appropriately decreased so that the number of shares of Common Stock issuable
on conversion of each share of Series A Stock shall be increased in proportion
to such increase in outstanding shares.
A.6(d)(iv) If, at any time after the Original Issuance Date,
the number of shares of Common Stock outstanding is decreased by a combination
of the outstanding shares of Common Stock (whether by reverse stock split or
otherwise), then, following the record date for such combination, the Conversion
Price shall be appropriately increased so that the number of shares of Common
Stock issuable on conversion of each share of Series A Stock shall be decreased
in proportion to such decrease in outstanding shares.
A.6(d)(v) If there is, at any time after the Original Issuance
Date, any capital reorganization, or any reclassification of the capital stock
of the Corporation (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 stock dividend or
subdivision, split-up or combination of shares), or a consolidation or merger of
the Corporation with or into another person or entity (other than consolidation
or merger in which the Corporation is the continuing corporation and which does
not result in any change in the powers, designations, preferences and rights, or
the qualifications, limitations or restrictions, if any, of the capital stock of
the Corporation) or a sale or other disposition of all or substantially all the
properties and assets of the Corporation as an entity to any other person (any
such transaction, an "Extraordinary Transaction");
Then the Corporation shall provide appropriate adjustment to
the Conversion Price with respect to each share of Series A Stock outstanding
after the effectiveness of such Extraordinary Transaction such that each share
of Series A Stock outstanding immediately prior to the effectiveness of the
Extraordinary Transaction shall be convertible into the kind and
52
<PAGE> 54
number of shares of stock or other securities or property of the Corporation, or
of the corporation resulting from or surviving such Extraordinary Transaction,
that a holder of the number of shares of Common Stock deliverable (immediately
prior to the effectiveness of the Extraordinary Transaction) upon conversion of
such share of Series A Stock would have been entitled to receive upon such
Extraordinary Transaction.
The provisions of this Section A.6(d)(v) shall similarly apply to
successive Extraordinary Transactions.
A.6(d)(vi) All calculations under this Section A.6(d) shall be
made to the nearest one-tenth of a cent ($0.01) or to the nearest one-tenth of a
share, as the case may be.
A.6(d)(vii) For the purpose of any computation pursuant to
Section A.6(c) hereof or this Section A.6(d), the Current Market Price at any
date of one share of Common Stock shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days ending on the fifth (5th)
business day before the day in question (as adjusted for any stock dividend,
split-up, combination or reclassification that took effect during such
30-business day period) as follows:
A.6(d)(vii)(A) If the Common Stock is listed or admitted for
trading on a national securities exchange, then the closing price for each day
shall be the last reported sales price regular way or, in case no such reported
sales took place on such day, the average of the last reported bid and asked
prices regular way, in either case on the principal national securities exchange
on which the Common Stock is listed or admitted to trading.
A.6(d)(vii)(B) If the Common Stock is not at the time listed
or admitted for trading on any such exchange, then such price as shall be equal
to the last reported sale price, or if there is no such sale price, the average
of the last reported bid and asked prices, as reported by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") on such
day.
A.6(d)(vii)(C) If the Common Stock is not at the time quoted
on the NASDAQ, then such price shall be equal to the last reported bid and asked
prices on such day as reported by the National Quotation Bureau, Inc. or any
similar reputable quotation and reporting service, if such quotation is not
reported by the National Quotation Bureau, Inc.
A.6(d)(vii)(D) If the Common Stock is not traded in such
manner than the quotations referred to in this section A.6(d)(vii) are available
for the period required hereunder, then the Current Market Price shall be the
fair market value of such share, as determined in good faith by a majority of
the entire Board of Directors.
A.6(d)(viii) In any case in which the provisions of this
section A.6(d) shall require that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until
the occurrence of such event (A) issuing to the holder of any shares of Series A
Stock converted after such record date and before the occurrence of such event
the additional shares of capital stock issuable upon such conversion by reason
of the adjustment required by such event over and above the shares of capital
stock issuable upon such conversion before giving effect to such adjustment, and
(B) paying to such holder any cash amounts in lieu
53
<PAGE> 55
of fractional shares pursuant to Section A.6(c)(ii) hereof; provided, however,
that the Corporation shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such additional
shares, and such cash, upon the occurrence of the event requiring such
adjustment.
A.6(d)(ix) If a state of facts shall occur that, without being
specifically controlled by the provisions of this Section A.6, would not fairly
protect the conversion rights of the holders of the Series A Stock in accordance
with the essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
conversion rights, as determined in their sole discretion.
A.6(e) Whenever the Conversion Price shall be adjusted as
provided in Section A.6(d) hereof, the Corporation shall forthwith file and keep
on record at the office of the Secretary of the Corporation and at the office of
the transfer agent for the Series A Stock or at such other place as may be
designated by the Corporation, a statement, signed by its President or Chief
Executive Officer and by its Treasurer or Chief Financial Officer, showing in
detail the facts requiring such adjustment and the Conversion Price that shall
be in effect after such adjustment. The Corporation shall also cause a copy of
such statement to be sent by first-class, certified mail, return receipt
requested, postage prepaid, to each Series A Stockholder at such holder's
address appearing on the Corporation's records. Where appropriate, such copy
shall be given in advance of any such adjustment and shall be included as part
of a notice required to be mailed under the provisions of Section A.6(f) hereof.
A.6(f) In the event the Corporation shall propose to take any
action of the types described in Section A.6(d)(i), (iii), (iv) or (v) hereof,
or any other Event of Sale, the Corporation shall give notice to each Series A
Stockholder in the manner set forth in Section A.6(e) hereof, which notice shall
specify the record date, if any, with respect to any such action and the date on
which such action is to take place. Such notice shall also set forth such facts
with respect thereto as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Conversion Price with respect to the Series A Stock and the number, kind
or class of shares or other securities or property which shall be deliverable or
purchasable upon each conversion of Series A Stock. In the case of any action
that would require the fixing of a record date, such notice shall be given at
least 20 days prior to the record date so fixed, and in the case of any other
action, such notice shall be given at least 30 days prior to the taking of such
proposed action.
A.6(g) The Corporation shall pay all documentary, stamp or
other similar transactional taxes attributable to the issuance or delivery of
shares of capital stock of the Corporation upon conversion of any shares of
Series A Stock; provided, however, that the Corporation shall not be required to
pay any taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a name other than
that of the Series A Stockholder in respect of which such shares of Series A
Stock are being issued.
A.6(h) The Corporation shall reserve out of its authorized but
unissued shares of Common Stock solely for the purpose of effecting the
conversion of the Series A Stock sufficient
54
<PAGE> 56
shares of Common Stock to provide for the conversion of all outstanding shares
of Series A Stock.
A.6(i) All shares of Common Stock which may be issued in
connection with the conversion provisions set forth herein will, upon issuance
by the Corporation, be validly issued, fully paid and nonassessable, not subject
to any preemptive or similar rights and free from all taxes, liens or charges
with respect thereto created or imposed by the Corporation.
A.6(j) Upon the consummation of a firm commitment underwritten
public offering of Common Stock of the Corporation registered under the
Securities Act of 1933, pursuant to which (i) Common Stock is offered to the
public at a price of at least $4.00 per share, as constituted on the Original
Issuance Date (subject to adjustment to reflect stock splits, stock dividends,
stock combinations, recapitalizations and like occurrences), and (ii) the net
proceeds to the Corporations are at least $8,000,000, each share of Series A
Stock then outstanding shall by virtue of and immediately prior to the closing
of such firm commitment public offering and without any action on the part of
the holder thereof, be deemed automatically converted into that number of shares
of Common Stock in which the Series A Stock would be convertible if such
conversion were to occur at the time of the public offering of Common Stock. The
holder of any shares of Series A Stock converted into Common Stock pursuant to
this Section A.6(j) shall be entitled to payment of all declared but unpaid
dividends, if any, payable on or with respect to such shares up to and including
the date of the closing of such public offering which shall be deemed the
Conversion Date for purposes of this Section A.6(j).
A.8. Definitions. As used in Section A of this Certificate of
Incorporation, the following terms shall have the corresponding meanings:
"Business Day" shall mean any day other than a
Saturday, Sunday or public holiday in the state where the
principal executive office of the Corporation is located.
"Original Issuance Date" with respect to any share of
Series A Preferred Stock shall mean the date of first issuance
by the Corporation of a share of Series A Preferred Stock.
"Original Purchase Price" shall mean with respect to
the Series A Stock, $2.50 per share.
"Proportional Adjustment" shall mean an adjustment
made to the price of the Series A Stock upon the occurrence of
a stock split, reverse stock split, stock dividend, stock
combination, reclassification or other similar change with
respect to such security, such that the price of one share of
the Series A Stock before the occurrence of any such change
shall equal the aggregate price of the share (or shares or
fractional share) of such security (or any other security)
received by the holder of the Series A Stock with respect
thereto upon the effectiveness of such change.
PART B. ADDITIONAL SERIES OF PREFERRED STOCK
55
<PAGE> 57
B.1 Designation of Additional Series of Preferred Stock. Subject to
Section A.5 hereof, the Board of Directors is hereby expressly authorized to
provide for, designate and issue, out of the authorized but unissued shares of
Preferred Stock, one or more other series of Preferred Stock in addition to the
Series A Stock, subject to the terms and conditions set forth herein including
the approval of the Series A Stockholders. Before any shares of any such series
are issued, the Board of Directors shall fix, and hereby is expressly empowered
to fix, by resolution or resolutions, the following provisions of the shares of
any such series:
(a) the designation of such series, the number of shares to
constitute such series and the stated value thereof, if different from the par
value thereof;
(b) whether the shares of such series shall have voting rights
or powers, in addition to any voting rights required by law, and, if so, the
terms of such voting rights or powers, which may be full or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so from what dates, the conditions
and dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any shares of stock
of any other class or series;
(d) whether the shares of such class or series shall be
subject to redemption by the Corporation, and, if so, the times, prices and
other conditions of such redemption;
(e) the amount or amounts payable with respect to shares of
such class or series upon, and the rights of the holders of such class or series
in, the voluntary or involuntary liquidation, dissolution or winding up, or upon
any distribution of the assets, of the Corporation; provided, however, in no
case shall the rights of the holders of such class or series in the voluntary or
involuntary liquidation of the Corporation be senior or equal to those of the
holders of Preferred Stock as set forth hereunder and the Senior Common Stock as
set forth hereunder;
(f) whether the shares of such class or series shall be
subject to the operation of a retirement or sinking fund and, if so, the extent
to and manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such class or series for retirement
or other corporate purposes and the terms and provisions relative to the
operation thereof;
(g) whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of stock of any other class or
series of any other securities and, if so, the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the same,
and any other terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be effective
while any shares of such class or series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or series;
(i) the conditions or restrictions, if any, to be effective
while any shares of such class or series are outstanding upon the creation of
indebtedness of the Corporation or upon
56
<PAGE> 58
the issue of any additional stock, including additional shares of such class or
series or of any other class or series; and
(j) any other powers, designation, preference and relative,
participating, optional or other special rights, and any qualifications,
limitations or restrictions thereof.
The powers, designations, preferences and relative,
participating, optional or other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. The Board
of Directors is hereby expressly authorized from time to time to increase (but
not above the total number of authorized shares of Preferred Stock) or decrease
(but not below the number of shares thereof then outstanding) the number of
shares of stock of any series of Preferred Stock so designated pursuant to this
Section B.1.
PART C. ORDINARY COMMON STOCK
C.1. Designation and Amount. The Common Stock of the Corporation shall
include the following series of Common Stock: 2,499,500 shares of Ordinary
Common Stock, par value $.001 per share ("Ordinary Common Stock"). The number of
shares, powers, terms, conditions, designations, preferences and privileges,
relative, participating, optional and other special rights, and qualifications,
limitations and restrictions, of the Ordinary Common Stock shall be as set forth
in this Part C. The number of authorized shares of Ordinary Common Stock may be
increased or decreased (but not below the combined number of shares thereof then
outstanding and those reserved for issuance upon conversion of the Series A
Stock) by the affirmative vote of the holders of the majority of the stock of
the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the Delaware General Corporation Law.
C.2. Voting. Except as provided in this Certificate of Incorporation or
by applicable law, each Ordinary Common Stockholder shall be entitled to one
vote only for each share of Ordinary Common Stock held of record on all matters
as to which Ordinary Common Stockholders shall be entitled to vote, which voting
rights shall not be cumulative.
C.3. Other Rights. Each share of Ordinary Common Stock issued and
outstanding shall be identical in all respects with each other such share, and
no dividends shall be paid on any shares of Ordinary Common Stock unless the
same dividend is paid on all shares of Ordinary Common Stock outstanding at the
time of such payment. Except for and subject to those rights expressly granted
to the holders of Preferred Stock and Senior Common Stock and except as may be
provided by the laws of the State of Delaware, the Ordinary Common Stockholders
shall have all other rights of stockholders, including, without limitation, (a)
the right to receive dividends, when and as declared by the Board of Directors,
out of assets lawfully available therefor, and (b) in the event of any
distribution of assets upon a liquidation, dissolution or winding-up of the
affairs of the Corporation or otherwise, the right to receive ratably and
equally, together with the holders of the Series A Stock, the Senior Common
Stock and the holders of outstanding shares of any other class or series of
stock, all the assets and funds of the Corporation remaining after the payment
to the holders of the Preferred Stock and the Senior Common Stock of the
specific amounts which they are entitled to receive upon such liquidation,
dissolution or winding-up of the affairs of the Corporation as provided herein.
57
<PAGE> 59
PART D. SENIOR COMMON STOCK
D.1. Designation and Amount. The Common Stock of the Corporation shall
include the following series of Common Stock: 500,500 shares of Senior Common
Stock, par value $.001 per share ("Senior Common Stock"). Except as set forth in
this Part D, the powers, terms, conditions, designations, preferences and
privileges, relative, participating, optional and other special rights, and
qualifications, limitations and restrictions, of the Senior Common Stock shall
be identical to those of Ordinary Common Stock.
D.2.(a) Liquidation. With respect to rights on Liquidation, the Senior
Common Stock shall rank junior to the Series A Stock, equally with each other,
and senior and prior to the Corporation's Ordinary Common Stock and to all other
classes or series of stock issued by the Corporation, except as otherwise
approved by the affirmative vote or consent of the holders of a majority of the
Senior Common Stock.
D.2(b) In the event of any Liquidation, after payment shall have been
made to the Series A Stockholders of the full amount to which they shall be
entitled pursuant to Section A.4(b) of this Article IV, the Senior Common
Stockholders shall be entitled to receive an amount per share equal (and in like
kind) to the Original Purchase Price per share of the Series A Stock.
If, upon any Liquidation, the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the Senior Common
Stockholders the full amounts to which they shall be entitled pursuant to the
next preceding sentence, the holders of the Senior Common Stock shall share
ratably in any distribution of assets according to the preferential amounts
fixed for the Senior Common Stock (pursuant to Section D.2(b) of this Article
IV) which would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full.
D.2(c) In the event of any Liquidation, after payments shall have been
made first to the Series A Stockholders and the Senior Common Stockholders, the
Series A Stockholders and the Senior Common Stockholders, as a class, shall be
entitled to share ratably (calculated with respect to such Series A Stock as
provided in the next sentence) with the Common Stockholders and the Senior
Common Stockholders, in all remaining assets of the Corporation available for
distribution to its stockholders. For purposes of calculating the amount of any
payment to be paid upon any such Liquidation, each share of such Series A Stock
shall be deemed to be that number of shares (including fractional shares) of
Common Stock into which it is then convertible, rounded to the nearest one-tenth
of a share.
D.3. Voting. Except as provided in this Certificate of Incorporation or
by applicable law, each Senior Common Stockholder shall be entitled to one vote
only for each share of Senior Common Stock held on record on all matters as to
which Senior Common Stockholders shall be entitled to vote, which voting rights
shall not be cumulative.
D.4. Other Rights. Each share of Senior Common Stock issued and
outstanding shall be identical in all respects with each other such share, and
no dividends shall be paid on any shares of Senior Common Stock unless the same
dividend is paid on all shares of Senior Common Stock outstanding at the time of
such payment. Except for and subject to those rights expressly granted to the
holders of Preferred Stock and except as may be provided by the laws of the
State
58
<PAGE> 60
of Delaware, the Senior Common Stockholders shall have all other rights of
stockholders, including, without limitation, (a) the right to receive dividends,
when and as declared by the Board of Directors, out of assets lawfully available
therefor, and (b) in the event of any distribution of assets upon liquidation,
dissolution or winding-up of the affairs of the Corporation or otherwise, the
right to receive ratably and equally, together with the holders of the Series A
Stock and the holders of outstanding shares of any other class or series of
stock, all the assets and funds of the Corporation remaining after the payment
to the holders of the Preferred Stock and the Senior Common Stock of the
specific amounts which they are entitled to receive upon such liquidation,
dissolution or winding-up of the affairs of the Corporation as provided herein.
ARTICLE V
Incorporator
The name and mailing address of the incorporator is James W. Marcovitz,
Esq., Squadron, Ellenoff, Plesent & Sheinfeld, LLP, 551 Fifth Avenue, New York,
New York 10176-0001.
ARTICLE VI
Board of Directors
A.1. Constitution. Subject to the provisions of Section A.5(b) of
Article III hereof, the entire Board of Directors of the Corporation shall
consist of not in excess of five (5) persons, all of whom shall be Series A
Directors, as defined in Section A.5(b)(i) of Article III hereof, to the extent
that the holders of Series A Stock exercise their rights thereunder. Unless and
except to the extent that the By-laws of the Corporation otherwise require, the
election of directors of the Corporation need not be by written ballot.
A.2. Election. Election of directors need not be by written ballot.
A.3. Powers. Until the earlier of: (i) the consummation of a firm
commitment underwritten public offering of Common Stock of the Corporation
registered under the Securities Act of 1933; and (ii) the expiration of the
Collaboration Agreement, the Corporation shall not take any of the following
actions without the approval of the majority of the Board of Directors,
including the Series A Directors:
(a) Sell, abandon, transfer, lease or otherwise dispose of all or
substantially all of the Corporation's assets.
(b) Acquire all or substantially all of the assets of another
entity.
(c) Declare or pay any dividend or make any distribution of cash
or property or both to holders of shares of capital stock or securities of the
Corporation.
(d) Make any payment on account of the purchase, redemption or
other retirement of any share of capital stock of the Corporation, except
pursuant to the provisions of stock repurchase agreements between the
Corporation and any of its employees and consultants that have been specifically
approved by at least one (1) of the Series A Directors or by the
59
<PAGE> 61
holders of a majority of the voting power of the Series A Stock then outstanding
(determined in accordance with Section A.5(a) hereof).
(e) Merge or consolidate with or into any other entity.
(f) Voluntarily dissolve, liquidate or windup the affairs of the
Corporation.
(g) Alter or change the designations, powers, preferences or
rights of the Series A Stock of the Corporation.
(h) Amend or repeal any of the provisions of this Certificate of
Incorporation or the By-laws of the Corporation.
(i) Authorize, designate, issue or agree to issue any equity or
debt security of the Corporation, or any security convertible into, or
exercisable for, shares of the capital stock of the Corporation (except that the
approval of the Series A Directors shall not be required for the issuance of
Excluded Stock).
(j) Adopt, amend or modify (except for immaterial changes) any
stock option plan, stock option agreement, restricted stock purchase agreement
or stock restriction agreement entered into between the Corporation and its
employees, officers, directors, consultants and/or independent contractors
(except that the approval of the Series A Directors shall not be required for
the issuance of Excluded Stock).
(k) Accelerate the vesting schedule or exercise date of any such
options or in any such stock option agreement, restricted stock purchase
agreement or stock restriction agreement (except that the approval of the Series
A Directors shall not be required for the issuance of Excluded Stock).
(l) Enter into any financing arrangement in excess of $100,000
including, without limitation, loan agreements, credit lines, letters of credit
or capitalized leases.
(m) Enter into any contract, agreement or license or series of
related contracts, agreements or licenses in excess of $100,000, whether in a
single disbursement or a series of related disbursements, or for a term in
excess of 12 months.
(n) Enter into any transaction or agreement with any officer or
director of the Corporation or with any corporation, partnership or other
organization (an "Outside Entity") in which one or more of the officers or
directors of the Corporation is an officer or director of, or has a financial
interest in, such Outside Entity.
(o) Initiate, enter into or amend any agreement or arrangement
pertaining to employment with or engagement by the Corporation where such
agreement or arrangement provides for either the employment of any officer of
the Corporation regardless of compensation, or compensation greater than or
equal to $75,000, in the aggregate, on an annual or annualized basis.
60
<PAGE> 62
(p) Enter into or become subject to any agreement which restricts
or purports to restrict the Corporation from engaging or otherwise competing in
any material aspect of its business anywhere in the world, or which otherwise
limits the business in which the Corporation may engage or compete.
(q) Take any action or enter into any other transaction outside
the ordinary course of business or effect any material change in the conduct or
operation of the Corporation's business.
(r) Enter into any line of business other than the
biopharmaceutical business.
(s) Establish or approve of any Corporation policies delegating or
delineating the authority of any officer or employee to act on behalf of the
Corporation outside of the ordinary course of business.
(t) Appoint, terminate or remove the Chief Executive Officer or
President or the Chief Financial Officer, Treasurer or Vice President-Finance.
(u) Adopt and amend the budgets of the Corporation.
(v) Adopt and materially amend the strategic or business plan of
the Corporation.
A.4. Exculpation. No director of the Corporation shall be liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this provision does not eliminate
the liability of the director (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of Title 8 of the Delaware Code, or (iv) for any
transaction from which the director derived an improper personal benefit.
For purposes of the prior sentence, the term "damages" shall, to the
extent permitted by law, include without limitation, any judgment, fine, amount
paid in settlement, penalty, punitive damages, excise or other tax assessed with
respect to an employee benefit plan, or expense of any nature (including,
without limitation, counsel fees and disbursements).
Each person who serves as a director of the Corporation while this
Section A.4 is in effect shall be deemed to be doing so in reliance on the
provisions of this Section A.4, and neither the amendment or repeal of this
Section A.4, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with this Section A.4, shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for, arising out of, based upon, or in connection with any acts or omissions of
such director occurring prior to such amendment, repeal, or adoption of an
inconsistent provision.
If the Delaware General Corporation Law is amended hereafter to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law.
61
<PAGE> 63
The provisions of this Section A.4 are cumulative and shall be in
addition to and independent of any and all other limitations on or eliminations
of the liabilities of directors of the Corporation, as such, whether such
limitations or eliminations arise under or are created by any law, rule,
regulation, by-law, agreement, vote of shareholders or disinterested directors,
or otherwise.
ARTICLE VII
Indemnification
(a) Each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director, officer, employee, or
agent of the Corporation or any of its direct or indirect subsidiaries or is or
was serving at the request of the Corporation as a director, officer,
incorporator, employee, or agent of any other corporation or of a partnership,
joint venture, trust, or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
incorporator, employee, or agent or in any other capacity while serving as a
director, officer, incorporator, employee, or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto), against all expense, liability, and loss (including attorneys'
fees, judgments, fines, excise or other taxes assessed with respect to an
employee benefit plan, penalties, and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith.
Such indemnification shall continue as to an indemnitee who has ceased
to be a director, officer, employee, or agent and shall inure to the benefit of
the indemnitee's heirs, executors, and administrators.
However, except as provided in Paragraph (c) of this Article VII with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
(b) The right to indemnification conferred in Paragraph (a) of this
Article VII shall include the right to be paid by the Corporation the expenses
incurred in defending any proceeding for which such right to indemnification is
applicable in advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under this Article VII or otherwise.
62
<PAGE> 64
(c) The rights to indemnification and to the advancement of expenses
conferred in Paragraphs (a) and(b) of this Article VII shall be contract rights.
If a claim under Paragraph (a) or (b) of this Article VII is not paid in full by
the Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit.
In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by an indemnitee to enforce
a right to an advancement of expenses) it shall be a defense that the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law, and (ii) any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that the indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article VII or otherwise, shall be on the
Corporation.
(d) The rights to indemnification and to the advancement of expenses
conferred in this Article VII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, this certificate of
incorporation, by-law, agreement, vote of stockholders or disinterested
directors, or otherwise.
(e) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the Corporation or
another corporation, partnership, joint venture, trust, or other enterprise
against any expense, liability, or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability, or loss
under the Delaware General Corporation Law.
(f) The Corporation's obligation, if any, to indemnify any person who
was or is serving as a director, officer, employee, or agent of any direct or
indirect subsidiary of the Corporation or, at the request of the Corporation, of
any other corporation or of a partnership, joint venture,
63
<PAGE> 65
trust, or other enterprise shall be reduced by any amount such person may
collect as indemnification from such other corporation, partnership, joint
venture, trust, or other enterprise.
(g) Any repeal or modification of the foregoing provisions of this
Article VII shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE VIII
Settlements
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs.
If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the Corporation, as the case
may be, and also on the Corporation.
ARTICLE IX
By-laws
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation, subject to the provisions
of Section A.5 of Article IV hereof.
ARTICLE X
Meetings and Records
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE XI
Perpetual Existence
The Corporation is to have perpetual existence.
64
<PAGE> 66
ARTICLE XII
Amendments and Repeal
Except as otherwise specifically provided in this Certificate of
Incorporation, the Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and to add or insert other provisions authorized
at such time by the laws of the State of Delaware, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
Article VIII.
IN WITNESS WHEREOF, the undersigned has signed this Certificate this
10th day of July, 1997.
James W. Marcovitz
Sole Incorporator
65
<PAGE> 67
EXHIBIT B
CAPITALIZATION OF HELICON THERAPEUTICS, INC.
<TABLE>
<CAPTION>
PERCENTAGE OF TOTAL NUMBER
NUMBER OF SHARES OF CAPITAL
NAME AND ADDRESS OF STOCKHOLDER OF SHARES STOCK OUTSTANDING* TYPE
<S> <C> <C> <C>
ONCOGENE SCIENCE, INC. ** ** Preferred
106 Charles Lindbergh Boulevard
Uniondale, NY 11553
COLD SPRING HARBOR LABORATORY ** ** Preferred
Hershey Building
One Bungtown Road
Cold Spring Harbor, New York
** ** ** Preferred
and
**
with a copy to:
F. Hoffmann - La Roche Ltd
340 Kingsland Street
Nutley, New Jersey 07110
Attention: General Counsel
</TABLE>
- ---------------
* An aggregate of ** shares of Common Stock (consisting of ** shares of
Senior Common Stock and ** shares of Ordinary Common Stock) shall be
issued to certain other shareholders and such shares in the aggregate
represent approximately ** of the outstanding shares of capital stock
of the Corporation.
** This portion has been redacted pursuant to a request for confidential
treatment.
66
<PAGE> 68
EXHIBIT C
STOCKHOLDERS AGREEMENT
BY AND AMONG HELICON THERAPEUTICS, INC.,
AND CERTAIN OF ITS STOCKHOLDERS
This agreement was filed as Exhibit 10.34 to this Form 10-K and is incorporated
herein by reference.
67
<PAGE> 69
EXHIBIT D
OPINION OF SQUADRON, ELLENOFF,
PLESENT & SHEINFELD, LLP
[SQUADRON, ELLENOFF, PLESENT & SHEINFELD, LLP LETTERHEAD]
July 17, 1997
**
Oncogene Science, Inc.
106 Charles Lindbergh Boulevard
Uniondale, New York 11553-3649
Cold Spring Harbor Laboratory
Hershey Building
One Bungtown Road
Cold Spring Harbor, New York 11724
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 7.1(b) of the
Convertible Preferred Stock Purchase Agreement (including all exhibits and
schedules thereto) dated as of July 17, 1997 (the "Purchase Agreement"), by and
between Helicon Therapeutics, Inc., a Delaware corporation (the "Company"), and
** ("Roche"), Oncogene Science, Inc. ("OSI") and Cold Spring Harbor Laboratory
("CSHL", and collectively with Roche and OSI, the "Investors"), in connection
with the purchase by the Investors of an aggregate 1,413,400 shares (the
"Shares") of Series A Convertible Preferred Stock, $.001 par value per share
("Preferred Stock"), of the Company. Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to them in the
Purchase Agreement.
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
68
<PAGE> 70
We have acted as counsel for the Company in connection with the
preparation, execution and delivery of (i) the Purchase Agreement; (ii) the
Certificate of Incorporation of the Company filed in the Office of the Secretary
of State of Delaware on July 10, 1997 (the "Certificate"); and (iii) the
Stockholders' Agreement dated July 17, 1997 by and among the Company and the
persons listed on Schedule 1 attached thereto (the "Stockholders' Agreement").
In connection with this opinion, we have examined and relied upon the
following:
(i) a copy of the Certificate:
(ii) a certificate, dated July 10, 1997 from the Secretary of State
of the State of Delaware certifying the legal existence of the
Company in Delaware;
(iii) the Purchase Agreement;
(iv) the Stockholders' Agreement;
(v) resolutions of the Board of Directors of the Company, as
certified by the Secretary of the Company as being complete,
accurate and in effect;
(vi) a certificate of the Chairman of the Company certifying as to
the representations and warranties made by the Company
pursuant to the Purchase Agreement;
(vii) a certificate of the Secretary of the Company as to, among
other things, (a) the Certificate, and (b) resolutions of the
Board of Directors and stockholders relating to the Purchase
Agreement and the transactions contemplated therein, including
the issuance of the Shares;
(viii) the corporate minute and record books and stock transfer
records of the Company;
(ix) copies of the contracts and documents listed in the schedules
to the Purchase Agreement; and
The Purchase Agreement and the Stockholders' Agreement are hereinafter referred
to collectively as the "Transaction Documents." In connection with the opinions
set forth below, we have also examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records,
certificates and other instruments as we have deemed necessary or appropriate
for purposes of the opinions rendered herein.
69
<PAGE> 71
In our examination of such documents, we have assumed the completeness
of corporate minute and stock record books of the Company, the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified, photostatic or facsimile copies, the authenticity of the originals of
such latter documents and the legal competence of each individual executing any
document.
For the purposes of this opinion, we have relied as to all questions of
fact material to this opinion upon certificates of public officials and officers
of the Company and upon the representations and warranties of the Investors and
the Company contained or referred to in the Purchase Agreement. Although we have
not made any independent checks or verification of such factual matters, nothing
has come to our attention leading us to question the accuracy of such
information.
Any reference to "our knowledge", "knowledge" or "known to us" or to
any matter "of which we are aware" or "coming to our attention" or any variation
of any of the foregoing shall mean the actual knowledge of the attorneys in this
firm who have rendered substantive attention to this matter of the existence of
absence of any facts which would contradict our opinions set forth below. We
have not undertaken any independent investigation to determine the existence or
absence of such facts, and no inference as to our knowledge of the existence or
absence of such facts should be drawn from the fact of our representation of the
Company. However, we are not aware of the existence or absence of any facts
which would contradict our opinions set forth below. Without limiting the
foregoing, we have not, for purposes of our opinions in paragraphs 5 and 9
below, searched any electronic databases or the dockets of any court,
administrative agency or regulatory body or other tribunal.
The opinions hereinafter expressed are qualified to the extent that
they may be subject to or affected by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, usury, fraudulent transfer or other laws affecting
the rights and remedies of creditors generally, (ii) statutory or decisional law
concerning recourse by creditors to security in the absence of notice and
hearing or (iii) duties and standards imposed on creditors and parties to
contracts, including without limitation requirements of good faith,
reasonableness and fair dealing. We express no opinion with respect to the
availability of the remedy of specific performance, injunctive relief or any
other equitable remedy or the assertion of any equitable defense upon any breach
of any of the covenants, warranties or other provisions contained in any such
agreements, instruments or documents in as much as such remedies or such
defenses may be subject to the discretion of a court.
Our opinions expressed in paragraph 1 below (insofar as they relate to
the Company's due organization, legal existence, good standing and qualification
to do business) are based solely on the certificates referred to in clauses
(iii) and (iv) above and are limited accordingly, and, as to such matters, our
opinions are rendered as of the respective date(s) of such certificates.
For purposes of our opinion expressed in paragraph 2 below, insofar as
it relates to the number of issued and outstanding shares of capital stock of
the Company and commitments to issue such stock, our opinion is based solely
upon our review of the corporate minute books, stock record and transfer books
of the Company, representations of officers of the Company and
70
<PAGE> 72
the agreements referred to in such paragraph. Our opinion in paragraph 2 below,
insofar as it relates to the full payment for outstanding shares of the
Company's stock, is based solely on representations of the Company contained in
the Purchase Agreement.
Except as otherwise expressly set forth herein, for purposes of our
opinions below, we express no opinion as to compliance by the Company with state
securities or "blue sky" laws of any jurisdiction or with State or federal
antifraud laws.
For purposes of our opinions expressed in paragraphs 6 and 8 below with
respect to the Shares, we have relied upon representations made by the Investors
in Section 6 of the Purchase Agreement and have assumed (without any independent
investigation) the accuracy of such representation.
We express no opinion as to the existence of any liens, pledges and
encumbrances on the assets of the Company.
We have assumed that the Purchase Agreement has been duly authorized,
executed and delivered by the Investors and that the Investors have all
requisite power and authority to effect the transactions contemplated by the
Purchase Agreement. We have assumed that the Purchase Agreement is a valid and
binding obligation of the Investors, enforceable against the Investors in
accordance with its terms. We do not render an opinion as to the application of
any law or regulation to the power, authority or competence of the Investors.
We have not made a review of the laws of any state or jurisdiction
other than the Federal laws of the United States, the state laws of the State of
New York, and the General Corporation Law statute of the State of Delaware.
Accordingly, we express no opinion herein with respect to the laws of any
jurisdiction other than the Federal laws of the United States of America, the
state laws of the State of New York, and the General Corporation Law statute of
the State of Delaware. To the extent that the laws of any jurisdiction other
than the Federal laws of the United States of America, the state laws of the
State of New York, and the General Corporation Law statute of the State of
Delaware are applicable to any instrument, agreement or matter referred to
below, we have assumed, with your permission, that such laws are identical to
the laws of the State of New York. For purposes of our opinions rendered below,
we have assumed, with your permission, that the law governing the future
performance by the Company of its obligations under the Purchase Agreement will
be identical to the law governing performance thereunder on the date of this
opinion. Except as noted above, the opinions expressed herein are based upon
facts known to us on the date hereof. We expressly disclaim any obligation to
inform you of any changes in such law or facts.
71
<PAGE> 73
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has full
corporate power and authority to own and lease its property (as such property is
known to us), to conduct its business as it is, to our knowledge, currently
conducted and to enter into and perform the transactions contemplated by the
Purchase Agreement. The Company is duly qualified to do business and is in good
standing in the State of New York.
2. Immediately after the Closing and the consummation of the
transactions contemplated by the Purchase Agreement, the authorized capital
stock of the Company will consist of:
(a) ** shares of Common Stock, $.001 par value per share
("Common Stock"), of which ** shares have been designated as Ordinary Common
Stock ("Ordinary Common Stock") and ** shares have been designated as Senior
Common Stock ("Senior Common Stock"). Shares of Senior Common Stock will be
validly issued and outstanding, fully paid and non-assessable and ** shares of
Ordinary Common Stock will have been duly reserved for issuance upon conversion
of the Preferred Stock;
(b) ** shares of Preferred Stock, $.001 par value per share,
of which ** have been designated as Series A Convertible Preferred Stock.
Except as set forth in or disclosed in the Certificate or the
Transaction Documents, to our knowledge (i) no agreement, subscription, warrant,
option, convertible security or other right (contingent or otherwise), to
purchase or acquire any shares of capital stock of the Company is authorized or
outstanding, (ii) there is not any commitment of the Company to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock any evidences
of indebtedness or assets of the Company, (iii) the Company has no obligation
(contingent or otherwise) 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, and (iv) there are no restrictions on the
transfer of any shares of the Company's capital stock, except as imposed by
Federal securities, state securities or "blue sky" laws. The holders of
Preferred Stock and Common Stock are not entitled to cumulative voting rights.
3. To our knowledge, except as provided or disclosed in the
Transaction Documents, no person or entity is entitled to (i) any preemptive
right of first refusal, contractual or similar rights with respect to the
issuance of any capital stock of the Company pursuant to any provision of law,
the Certificate, the By-Laws or any agreement to which the Company is a party,
or otherwise, which rights have not been waived with respect to the issuance,
sale and delivery of the Shares, or (ii) any rights with respect to the
registration of any capital stock of the Company under the Securities Act of
1933, as amended (the "Securities Act").
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
72
<PAGE> 74
4. The issuance, sale and delivery of the Preferred Shares by the
Company in accordance with the Purchase Agreement, and the issuance and delivery
of the shares of the Ordinary Common Stock issuable upon conversion of the
Preferred Shares, have been duly authorized and reserved for issuance, as the
case may be, by all necessary corporate action on the part of the Company, and
the Preferred Shares when issued, sold and delivered against payment therefor in
accordance with the provisions of the Purchase Agreement and the shares of the
Ordinary Common Stock issuable upon conversion of the Preferred Shares when
issued upon conversion in accordance with the provisions of the Certificate,
will be duly authorized and validly issued, fully paid and nonassessable. The
respective rights, privileges and preferences of the Preferred Stock and the
Ordinary Common Stock are stated in the Certificate. Assuming the accuracy of
the representations and warranties of the Company and the Investors set forth in
the Purchase Agreement, the issuance to each of the Investors of the Preferred
Shares pursuant thereto will not, in any material respect, violate applicable
federal or state securities laws.
5. The execution, delivery and performance by the Company of the
Purchase Agreement have been duly authorized by all necessary corporate action
on the part of the Company. The Purchase Agreement constitutes the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms. The execution, delivery and performance of the Purchase
Agreement, the offer, issuance and sale of the Preferred Shares pursuant to the
Purchase Agreement, and the issuance of shares of Common Stock upon conversion
of the Preferred Shares will not conflict with, or result in any breach of any
of the terms, conditions or provisions of, or constitute a default under, the
Certificate or By-Laws of the Company, any contract set forth in the schedules
to the Purchase Agreement, any law or statute or regulation promulgated
thereunder or any decree, judgment or order specifically naming the Company and
known to us.
6. Based in part on the representations of the Investors in
Section 6 of the Purchase Agreement, except as obtained and in effect as of the
date hereof, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any governmental
authority (other than filings required or permitted to be made after the date
hereof under applicable Federal and state securities laws) is required on the
part of the Company in connection with the authorization, execution, delivery
and performance of the Purchase Agreement, the authorization, offer, issuance,
sale and delivery of the Preferred Shares, the issuance and delivery of shares
of the Ordinary Common Stock issuable upon conversion of the Preferred Shares,
or the consummation of the other transactions at the Closing pursuant to the
Purchase Agreement.
7. The certificates representing the Preferred Shares are in due
and proper form and have been duly and validly executed by officers of the
Company.
8. Based in part on the representations of the Investors in
Section 6 of the Purchase Agreement, the offer, issuance and sale of the
Preferred Shares pursuant to the Purchase Agreement and the issuance of the
shares of the Ordinary Common Stock issuable upon conversion of the Preferred
Shares are exempt from registration under the Securities Act.
9. To our knowledge, except as disclosed in the Purchase
Agreement, (i) there is no action, suit or proceeding, or governmental inquiry
or investigation, pending or threatened against the Company or in which the
Company is a party before any court or governmental
73
<PAGE> 75
department, commission, board, bureau, agency or instrumentality and (ii) there
is no judgment, decree, injunction or order entered or existing against the
Company by any court or governmental department, commission, board, bureau,
agency or instrumentality.
This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you
of any change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein. Please
note that we are opining only as to the matters expressly set forth herein, and
no opinion should be inferred as to any other matters.
The opinions expressed herein are rendered to the Investors solely for
the purposes set forth in the first paragraph hereof and may not be relied upon
for any other purpose or by any other individual or entity without our prior
written consent.
Very truly yours,
74
<PAGE> 76
EXHIBIT E
COLLABORATIVE RESEARCH AND LICENSE
AGREEMENT BY AND BETWEEN
F. HOFFMANN - LA ROCHE INC.
AND HELICON THERAPEUTICS, INC.
This agreement was filed as Exhibit 10.36 to this Form 10-K and is incorporated
herein by reference.
75
<PAGE> 77
EXHIBIT F
FUNDED RESEARCH AND LICENSE AGREEMENT
BETWEEN HELICON THERAPEUTICS, INC.
AND COLD SPRING HARBOR LABORATORY
BETWEEN: HELICON THERAPEUTICS, INC., a corporation
incorporated under the laws of Delaware and
having its principal place of business at
106 Charles Lindbergh Boulevard, Uniondale,
New York 11553 (hereinafter called
"Helicon").
AND: COLD SPRING HARBOR LABORATORY, a non-profit
corporation incorporated under the laws of
New York and having its principal place of
business at Hershey Building, One Bungtown
Road, Cold Spring Harbor, New York 11724
(hereinafter called "CSHL").
AS OF: July 1, 1997
WHEREAS, Helicon was organized to discover, develop and market pharmaceutical
products, particularly products which modulate CREB ** in synaptic plasticity;
WHEREAS, Helicon has control of certain proprietary technology (set forth in
Exhibit A), through licenses from Oncogene Science, Inc. ("OSI"), for
identifying the effect of compounds on genes and gene products which is useful
in the process of developing products for the treatment and prevention of human
diseases and which will be utilized hereunder;
WHEREAS, Helicon has control of certain proprietary technology (set forth in
Exhibit B), through a license from CSHL, for identifying the effect of compounds
on genes and gene products which are useful in the process of developing
products for the treatment and prevention of human diseases and which will be
utilized hereunder;
WHEREAS, CSHL is engaged in basic research relating to genes associated with
long term memory;
WHEREAS, Helicon is conducting research in the field of long term memory and
wishes to fund such research by CSHL and to obtain a license regarding
inventions and technology which may arise out of such funded research program;
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
76
<PAGE> 78
WHEREAS, CSHL is willing to conduct such research under the direction of ** have
agreed to waive certain rights to participate in royalties or other income
payable in respect of such license as provided in agreements dated the date
hereof between CSHL and each of them; and
WHEREAS, CSHL is willing to grant to Helicon such a license subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS. In this Agreement, unless the context or subject matter
is inconsistent therewith, the following terms and expressions shall
have the following meanings:
(a) "ADDITIONAL TARGET" shall mean any ** , discovered subsequent
to the Initial Identified Target which has been the subject of
research carried out under the Research Program.
(b) "AFFILIATE" shall mean, with respect to any Person (including
a Party), any other Person which directly or indirectly
controls or is controlled by, or is under direct or indirect
common control with, such first mentioned Person or any Person
which is directly or indirectly controlled by a Person which
controls the first mentioned Person; for the purpose of this
definition, "CONTROL" shall mean, with respect to any Person
(including any Party), the ownership of more than 50% of the
voting shares or other voting equity of that Person.
(c) "AGREEMENT" shall mean this funded research and license
agreement and all instruments supplemental hereto or in
amendment or in confirmation hereof; "HEREIN", "HEREOF",
"HERETO", "HEREUNDER" and similar expressions mean and refer
to this Agreement and not to any particular article, section,
subsection or other subdivision; "ARTICLE", "SECTION",
"SUBSECTION" or other subdivision of this Agreement shall mean
and refers to the specific article, section, subsection or
other said subdivision of this Agreement.
(d) "ALLOCATED OVERHEAD" shall mean the amount of overhead,
including general and administrative costs, determined in
accordance with generally accepted accounting principles,
incurred by CSHL and allocated to the Research Program. Such
allocation by CSHL shall be at its normal indirect cost
reimbursement rate, which is a percentage of allowable direct
cost and which is currently ** for each dollar ($1.00) of
allowable direct cost.
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
77
<PAGE> 79
(e) "COMPOUND" shall mean any compound, or derivative or synthesis
thereof, the use of which has been identified or discovered or
developed by means of the Initial Identified Target and/or
Additional Target which results from the Research Program.
(f) "CONFIDENTIAL INFORMATION" shall mean CSHL Confidential
Information and Helicon Confidential Information.
(g) "CONTRACT PERIOD" shall mean the period beginning at the
Effective Date and continuing for three years (or for as
little as two years, if the Research Program is terminated),
unless earlier terminated as hereinafter provided in this
Agreement or upon six months' prior written notice by Helicon.
(h) "CREB" ** .
(i) "CSHL CONFIDENTIAL INFORMATION" shall mean all information
about any element of the CSHL Technology which is disclosed by
CSHL to Helicon and designated as "CONFIDENTIAL" in writing by
CSHL or its Affiliates at the time of disclosure to Helicon,
to the extent that such information as of the date of
disclosure to Helicon is not (i) known to Helicon other than
by virtue of a prior confidential disclosure to Helicon by
CSHL or its Affiliates, or (ii) disclosed in the published
literature or otherwise generally known to the public through
no fault of Helicon, its Affiliates, employees or consultants,
or (iii) obtained from an Independent Third Party that has no
obligation of confidentiality to CSHL or its Affiliates.
(j) "CSHL PATENTS" shall mean the rights conferred upon CSHL from
the patents and patent applications owned and/or controlled by
CSHL, both foreign and domestic, covering inventions resulting
from the Research Program, including, without limitation, all
substitutions, extensions, supplementary protection
certificates, reissues, renewals, divisions, continuations,
continuations in part, utility models and certificates of
invention thereof which are directed to subject matter
specifically described in the body of such patents or patent
applications.
(k) "CSHL SCIENTIFIC GROUP" shall mean ** , and the staffs of the
laboratories which they direct at CSHL.
(l) "CSHL TECHNOLOGY" shall mean and include Technology owned or
developed by CSHL which is:
(i) developed by employees of or consultants to CSHL
working under the direction of ** , alone or jointly
with Third Parties (including OSI and Roche), other
than Helicon, in the course of activities not related
to the Research Program, or existing before the
execution of this Agreement;
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
78
<PAGE> 80
(ii) acquired by purchase, license, assignment or other
means from Third Parties by CSHL, but only to the
extent that CSHL is legally entitled to disclose such
acquired Technology and use it in the Research
Program; or
(iii) developed by employees of or consultants to CSHL
working under the direction of ** , alone or jointly
with Third Parties (including OSI and Roche), other
than Helicon, in the course of the Research Program.
(m) "EFFECTIVE DATE" shall mean July 1, 1997.
(n) "EVENT OF TERMINATION" shall have the meaning ascribed thereto
at Section 7.2 hereof.
(o) "FIELD" shall mean the modulation of CREB activity in synaptic
plasticity.
(p) "FUNDED AMOUNT" shall have the meaning set forth in Article 3.
(q) "GPR" shall mean 37 Code of Federal Regulations Part 401.
(r) "HELICON CONFIDENTIAL INFORMATION" shall mean all information
about any element of the Helicon Technology which is disclosed
by Helicon to CSHL and designated as "CONFIDENTIAL" in writing
by Helicon or its Affiliates at the time of disclosure to
CSHL, to the extent that such information as of the date of
disclosure to CSHL is not (i) known to CSHL other than by
virtue of a prior confidential disclosure to CSHL by Helicon
or its Affiliates, or (ii) disclosed in the published
literature or otherwise generally known to the public through
no fault of CSHL, its Affiliates, employees or consultants, or
(iii) obtained from an Independent Third Party that has no
obligation of confidentiality to Helicon or its Affiliates.
(s) "HELICON PATENTS" shall mean the rights conferred upon Helicon
from the patents and patent applications owned and/or
controlled by Helicon, both foreign and domestic, covering (i)
inventions resulting from the Research Program, and/or (ii)
any invention made prior to the commencement of the Research
Program, which inventions result from using the Initial
Identified Target and any Additional Target, including,
without limitation, all substitutions, extensions,
supplementary protection certificates, reissues, renewals,
divisions, continuations, continuations in part, utility
models and certificates of invention thereof.
(t) "HELICON TECHNOLOGY" shall mean Technology owned or controlled
by Helicon which is:
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
79
<PAGE> 81
(i) developed by employees of or consultants to Helicon
alone or jointly with Third Parties (including OSI
and Roche), other than CSHL, in the course of
activities not related to the Research Program, or
existing before the execution of this Agreement;
(ii) acquired by purchase, license, assignment or other
means from Third Parties (including Roche and OSI),
by Helicon that would not otherwise be part of Joint
Technology, but only to the extent that Helicon is
legally entitled to disclose such acquired Technology
and use it in the Research Program; or
(iii) developed by employees of or consultants to Helicon
alone or jointly with Third Parties (including OSI
and Roche), other than CSHL, in the course of the
Research Program.
(u) "IMPROVEMENTS" shall mean any and all improvements in the
Field to Technology whether patentable or not or subject other
forms of protection, which improvements are owned or
controlled by CSHL (i) during the Research Program or (ii) for
five (5) years after the termination of the Research Program,
in the case of improvements made by CSHL resulting from
research conducted under the Collaborative Research and
License Agreement entered into as of July 1, 1997 by and
between F. Hoffmann-La Roche Ltd, Hoffmann-La Roche Inc., and
Helicon ("Collaborative Research and License Agreement"), and
for three (3) years after the termination of the Research
Program, in the case of all other improvements.
(v) "INDEPENDENT THIRD PARTY" shall mean any Person other than F.
Hoffmann-La Roche Ltd and Hoffmann-La Roche Inc. (together
"Roche"), Oncogene Science, Inc. ("OSI"), Helicon, CSHL, CSHL
Scientific Group and/or any of their respective Affiliates.
However, Genentech Inc. shall not be considered an Affiliate
of Roche.
(w) "INITIAL IDENTIFIED TARGET" shall mean the CREB protein, which
is the subject of the initial research to be carried out under
the Research Program.
(x) "JOINT PATENTS" shall mean those patents and patent
applications resulting from research conducted under the
Research Program which are jointly owned by both CSHL and
Helicon and shall include all rights under said patents and
patent applications, both foreign and domestic, including,
without limitation, all substitutions, extensions,
supplementary protection certificates, reissues, renewals,
divisions, continuations, continuations in part, utility
models and certificates of invention thereof.
(y) "JOINT TECHNOLOGY" shall mean Technology developed jointly by
the Parties in the course of the Research Program.
80
<PAGE> 82
(z) "PARTIES" shall mean Helicon and CSHL; and "PARTY" shall mean
any one of them.
(aa) "PERSON" shall mean any individual, corporation, company,
cooperative, partnership, trust, unincorporated association or
any other entity which possesses a juridical personality,
including any governmental authorities or body of competent
jurisdiction; and pronouns when referring to a Person, shall
have a similar extended meaning.
(bb) "PRODUCT" shall mean a Compound sold for the prevention,
treatment or management of any disease state in a human
patient or any other human therapeutic indication which
relates to the Initial Identified Target and/or any Additional
Target and which is identified during, or results from the
Research Program.
(cc) "RESEARCH PROGRAM" shall mean the collaborative research
program described in Exhibit C conducted at CSHL's facilities
under this Agreement under the direction of ** , or of
mutually acceptable successors, and funded by Helicon, as
subsequently revised or replaced by the Parties upon
agreement, for a period of three years, unless it is
terminated sooner in connection with the termination of the
research conducted under the Collaborative Research and
License Agreement, but in no case for a period shorter than
two years ("RESEARCH PERIOD"). The Research Period may be
extended on a yearly basis upon mutual written agreement;
provided that six months' prior written notice has been given
by the Party proposing such an extension of the Research
Period.
(dd) "TECHNOLOGY" shall mean all technology used to identify and
develop a Compound as a human drug within the frame of the
Research Program and shall include all tangible or intangible
know-how, inventions (whether or not patentable), data,
clinical and preclinical results and any physical, chemical or
biological materials that pertain to the development of human
therapeutic products, including all laboratory notebooks,
research plans, cultures, strains, vectors, genes and gene
fragments and their sequences, cell lines, hybridoma cell
lines, monoclonal and polyclonal antibodies, proteins and
protein fragments, non-protein chemical structures and methods
for synthesis, structure-activity relationships, computer
models of chemical structures, computer software, assay
methodology, processes, materials and methods for production,
recovery and purification of natural products, formulas,
plans, specifications, characteristics, equipment and
equipment designs, marketing surveys and plans, business
plans, experience and trade secrets; provided, however that
Technology shall not include any of the robotics technology of
Helicon, as defined in Exhibit D.
(ee) "THIRD PARTY" shall mean any Person other than the Parties
and/or their respective Affiliates.
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
81
<PAGE> 83
ARTICLE 2
RESEARCH PROGRAM
2.1 GENERAL. Subject to the terms and conditions of this Agreement, each of
Helicon and CSHL agrees, as of the Effective Date, to undertake and to
cause its Affiliates to undertake, the Research Program, and to
collaborate in respect thereof in the Field.
2.2 SCOPE. The scope of the Research Program shall be as set forth in
Exhibit C, and may be amended from time to time by mutual agreement of
the Parties.
2.3 RESEARCH PLAN.
(a) The plan for the first year of the Research Program is set
forth in Exhibit E. The plan for the following year shall be
prepared and approved by the Parties before the end of the
current year and the plan for each succeeding year shall be
prepared and approved by the Parties before the end of the
last year covered by any then existing plan. Each plan shall
include a budget for the period it covers, which shall set
forth the work to be accomplished during each three month
segment of that period ("Quarter") and the estimated Funded
Amounts to be made available for such Quarter. The budget so
created will be in form and detail as the Parties shall
determine and shall be completed in time to be included in
each Party's internal budgeting process.
(b) Upon the first anniversary of the Effective Date, Helicon
shall have the option to terminate the Research Program by
giving six months prior written notice to CSHL.
2.4 EXCLUSIVITY. CSHL agrees that during the Contract Period neither ** ,
and no person working at CSHL under their direction, shall conduct
research sponsored by any commercial organization not a party to this
Agreement, if the research relates to the Field, the Initial Identified
Target or any Additional Target, unless agreed to by Helicon. If CSHL
becomes aware during the Contract Period of an opportunity to sponsor
other research having any of the objectives of the Research Program or
to engage in such research sponsored by a commercial organization that
is not a party to this Agreement, it shall promptly notify Helicon of
such opportunity, and Helicon and CSHL shall consider whether such
opportunity can be incorporated into the Research Program or otherwise
used to further the purposes of the Research Program to their mutual
advantage. If, during the Contract Period, CSHL becomes aware of CSHL
and/or its Affiliates conducting or sponsoring research or engaging in
research sponsored by any commercial organization, and, if the research
relates to the Field, the Initial Identified Target or any Additional
Target, CSHL shall notify Helicon of such research and Helicon and CSHL
shall consider whether such research can be incorporated into the
Research Program or otherwise used to further the purposes of the
Research Program to their mutual advantage.
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
82
<PAGE> 84
2.5 CONDUCT OF RESEARCH. The research conducted by CSHL shall be directed
by the principal investigators designated by CSHL, ** , or by mutually
acceptable successors. These principal investigators will cooperate and
coordinate with Helicon to develop and implement the Research Plan.
2.6 REPORTS. During the Research Program, CSHL shall furnish to Helicon:
(a) summary reports within fifteen days after the end of each
three-month period, commencing on the Effective Date,
describing its progress under the Research Program; and
(b) comprehensive written reports within thirty days after the end
of each calendar year, describing in detail the work
accomplished by it under the Research Program during the year
and discussing and evaluating the results of such work.
2.7 MATERIALS. During the Contract Period, Helicon and CSHL shall, upon
each other's oral or written request, furnish to each other samples of
biochemical, biological or synthetic chemical materials which are part
of Helicon Technology, CSHL Technology or Joint Technology and which
are necessary for each Party to carry out its responsibilities under
the Research Program ("MATERIALS"). To the extent that the quantities
of Materials requested by either Party exceed the quantities set forth
in the current Research Plan, the requesting Party shall reimburse the
other Party for the reasonable costs of such Materials if they are
furnished and if reimbursement is requested.
2.8 LABORATORY FACILITIES. CSHL agrees to provide, or cause its Affiliates
to provide, suitable laboratory facilities, equipment and personnel for
carrying out its obligations under the Research Program and this
Agreement.
2.9 PATENT AGREEMENTS. Each of Helicon and CSHL shall require all of its
employees, all employees of its Affiliates and all Independent Third
Parties involved in, or associated with the Research Program to have
executed an agreement for the assignment of inventions.
2.10 FLEXIBILITY. In conducting its research and other obligations under
this Agreement, each of Helicon and CSHL shall have and maintain
sufficient flexibility to allow a shift in effort and emphasis within
the Research Program that will achieve the best results in the
]attainment of the objectives of the Research Program.
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
83
<PAGE> 85
ARTICLE 3
COSTS AND EXPENSES OF THE RESEARCH PROGRAM
3.1 CONTRACT PERIOD FUNDING. Helicon shall fund CSHL's total actual
research costs in carrying out the Research Plan, plus Allocated
Overhead (the "FUNDED AMOUNT"). The Funded Amount shall not exceed **
in the first year of the Contract Period, ** in the second year of the
Contract Period, and, in the event the Research Program is extended
beyond the Contract Period, ** in the third year, ** in the fourth
year, and ** in the fifth year, unless, in each instance, the Parties
determine that the above amounts are not sufficient to implement the
Research Plan that year, in which event, greater amounts shall be
expended during a particular year as determined by the Parties,
provided, however, that the aggregate Funded Amount for the five-year
period shall not exceed ** .
(a) Payments shall be made quarterly in advance for work scheduled
to be performed by CSHL during any Quarter, against CSHL's
invoice for such budgeted amount. Within thirty (30) days of
the close of a Quarter, CSHL shall invoice Helicon for the
amount actually spent by CSHL during the Quarter (plus
Allocated Overhead). If actual expenditures (plus Allocated
Overhead) are less than the prepayment, CSHL shall pay Helicon
at the date of the invoice the difference between the
prepayment and the actual expenditures. If actual expenditures
as approved by the Parties exceed the prepayment (and are less
than 25% of the maximum for that particular year set forth in
Section 3.1), Helicon shall pay CSHL the difference within
thirty (30) days of the date of the invoice.
(b) In the event that the Contract Period or the Research Program
is terminated upon six months' prior notice, Helicon shall
continue to fund CSHL's actual research costs during such
notice period in accordance with this Section 3.1.
(c) CSHL shall keep for three (3) years from the expiration of
this Agreement complete and accurate records of its
expenditures of the Funded Amounts received by it. The records
shall conform to generally accepted accounting principles as
applied to a similar corporation similarly situated. Helicon
shall have the right at its own expense during the term of
this Agreement and during the subsequent three-year period to
obtain from the independent certified public accountant
employed by CSHL an audit of said records to verify the
accuracy of such expenditures, pursuant to the Research Plan.
CSHL shall make its records available for inspection by the
independent certified public accountant during regular
business hours at the place or places where such records are
customarily kept, upon reasonable notice from Helicon, to the
extent reasonably necessary to verify the accuracy of the
expenditures and required reports. This right of inspection
shall not be exercised more than once in any calendar year and
not more than once with respect to records covering any
specific period of time. Helicon agrees to hold in strict
confidence all
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
84
<PAGE> 86
information concerning such expenditures, other than their
total amounts, and all information learned in the course of
any audit or inspection, except to the extent that it is
necessary for Helicon to reveal the information in order to
enforce any rights it may have pursuant to this Agreement or
if disclosure is required by law. The failure of Helicon to
request verification of any expenditures before or during the
three-year period shall be considered acceptance of the
accuracy of the invoices for such expenditures, and CSHL shall
have no obligation to maintain any records pertaining to such
expenditures beyond the three-year period.
(d) The Parties agree to use good faith efforts to conduct the
research contemplated under this Agreement effectively so as
to minimize the expenditures made under this Agreement.
ARTICLE 4
CONFIDENTIAL INFORMATION
4.1 PERMITTED USE OF CONFIDENTIAL INFORMATION. Nothing contained herein
will in any way restrict or impair any Party's right to use, disclose
or otherwise deal with any Confidential Information which:
(a) later becomes part of the public domain by publication or
otherwise through no breach of this Agreement by the Party
receiving such information;
(b) is information which is required to be included in patent
applications filed under Article 5 or required to be provided
to a government agency in order for Helicon to obtain
approvals to market Products, or for CSHL to make a Product
for Helicon hereunder; provided, however, that Helicon
Confidential Information or CSHL Confidential Information
shall not be disclosed in any such patent application or
otherwise without the prior written consent of the other
Party, which consent shall not be unreasonably withheld; or
(c) is information required to be disclosed by law or by a court
order, in each of which cases the disclosing Party shall
timely inform the other and use its best efforts to limit the
disclosure and maintain confidentiality to the extent possible
and will permit the other Party to limit such disclosure.
4.2 TREATMENT OF CONFIDENTIAL INFORMATION.
(a) Subject to the disclosure obligations set forth in Sections
4.1, 4.2 and 4.3 and publication rights set forth in Section
4.4, (i) Helicon agrees that during the period of the Research
Program and for five (5) years thereafter, it will keep
confidential, and will cause its Affiliates to keep
confidential, all CSHL Confidential Information, nor shall
Helicon or any of its Affiliates use CSHL Confidential
Information except as expressly permitted in this Agreement
and (ii) CSHL agrees that during the period of the Research
Programs and for five (5) years thereafter, it will keep
confidential, and will cause its Affiliates to keep
confidential, all Helicon
85
<PAGE> 87
Confidential Information, nor shall CSHL or any of its
Affiliates use Helicon Confidential Information except as
expressly permitted in this Agreement.
(b) Subject to Sections 4.1, 4.2, 4.3, and 4.4, Helicon and CSHL
acknowledge that the CSHL Confidential Information and Helicon
Confidential Information is highly valuable, proprietary,
confidential information, and each Party agrees that any
disclosure of the other Party's Confidential Information to
any officer, employee, agent, consultant or of any of its
Affiliates shall be made only if and to the extent necessary
to carry out its responsibilities under this Agreement and
shall be limited to the maximum extent possible consistent
with such responsibilities. Each Party agrees not to disclose
the other's Confidential Information to any Independent Third
Parties (other than consultants) under any circumstance
without written permission. Each Party shall take such action,
and shall cause its Affiliates to take such action, to
preserve the confidentiality of each other's Confidential
Information as they would customarily take to preserve the
confidentiality of their own confidential information.
4.3 PRESS RELEASES AND ANNOUNCEMENTS
(a) Neither Helicon or CSHL shall, and CSHL and Helicon shall
cause their Affiliates not to, issue any press release or
other public announcement relating to or disclosing this
Agreement, any amendment thereto, any performance hereunder,
any Confidential Information (other than its own Confidential
Information) without the prior written consent of the other
Party (which shall not be unreasonably withheld), except where
such announcements or press releases are required by law for
the purposes of securing the registration of, and or
governmental approval to market any Products, or for the
procurement of a Joint Patent. Notwithstanding the foregoing,
each Party shall have the right to disclose the existence of
this Agreement in any prospectus, offering memorandum or other
document or filing required by applicable securities laws or
other applicable law or regulation.
(b) Where a press release or public announcement is required by
law, the Party required to disclose Confidential Information
shall inform the other Party and provide it with a copy of any
such press release or public announcement prior to release.
(c) Each of Helicon and CSHL shall inform the other Party of any
Confidential Information which it is required to disclose.
(d) Helicon shall not use the name "Cold Spring Harbor
Laboratory," "CSHL," or any affiliate thereof or any variant
of such names, in any advertising, packaging (except for
customary technical reference) or other promotional material
in connection with the sale of any Product.
4.4 PUBLICATIONS. Notwithstanding the provisions of Sections 4.1, 4.2 and
4.3, a Party or its Affiliates may submit the results obtained in the
course of the Research Program for scientific publication subject to
the following restriction:
86
<PAGE> 88
(a) The Party intending to publish, directly or indirectly, shall
provide the other Party with a copy of the manuscript
(including any abstract) for any proposed publication or
presentation no later than thirty (30) days (or, in the event
of a manuscript relating to gene biology, sixty (60) days)
before the submission of such proposed publication or
presentation to a journal, editor or other Independent Third
Party for the purpose of review and comment and to enable the
Parties to take appropriate action regarding patent protection
for any inventions or improvements described in such
manuscripts.
4.5 CONTRACTS WITH INDEPENDENT THIRD PARTIES. If Helicon or CSHL or any of
their Affiliates, enters into any contract with an Independent Third
Party involving disclosure of Confidential Information (other than its
own Confidential Information), it shall first obtain the approval of
the other Party (which will give due consideration to academic
concerns), and, after signing, provide a copy of such contract to the
other Party. Helicon's concerns regarding confidentiality will be
satisfied if a transfer by CSHL or its Affiliates is to an academic,
non-commercial collaborator who agrees in writing to abide by the
confidentiality provisions of this Agreement.
4.6 RESTRICTIONS ON TRANSFERRING MATERIALS.
(a) Helicon and CSHL recognize that the Materials represent
valuable commercial assets. Therefore, throughout the Contract
Period and for five (5) years thereafter, each of CSHL and
Helicon agree not to transfer to any Third Party any such
Materials which constitute Technology owned solely by the
other Party to the Agreement. Additionally, throughout the
Contract Period and for six (6) months thereafter, CSHL and
Helicon agree not to transfer to any Third Party any Materials
which are part of Joint Technology, unless prior consent for
any such transfer is obtained from the other Party, which
consent shall not be unreasonably withheld, and unless such
Third Party agrees as a condition of any such transfer not to
transfer the Materials further and to use the Materials only
for research purposes not directed toward the development of
Products. However, notwithstanding the foregoing, the Parties
may furnish each other's Materials under commercially
reasonable terms to Independent Third Parties, so long as such
Independent Third Parties are recognized by the United States
Internal Revenue Service as not-for-profit entities and so
long as such Independent Third Parties have agreed to utilize
the Materials only for research purposes and to keep such
Materials confidential for five years after receiving them
from a Party, by taking such action, and causing its
Affiliates to take such action, to preserve the
confidentiality of such Materials as they would customarily
take to preserve the confidentiality of their own confidential
information.
(b) Title to Materials and other tangible assets arising resulting
from the Research Program shall be with CSHL, except that
proprietary Materials contributed by Helicon and any new
Materials derived from or incorporating any Helicon
Confidential Information shall remain the property of Helicon.
Any deposit in a public depository of biological materials
resulting from the Research Program shall be made only with
the consent of each Party, except as required in the
prosecution of a patent application.
87
<PAGE> 89
(c) Any provision herein to the contrary notwithstanding, in no
event shall Helicon be required to furnish to CSHL any Helicon
Confidential Information or any Material incorporating any
Helicon Confidential Information, regardless of the
incorporation of biological materials therein.
ARTICLE 5
INTELLECTUAL PROPERTY RIGHTS
5.1 GENERAL. The following provisions relate to inventions and know-how
developed, directly or indirectly through Affiliates, by Helicon or
CSHL or Helicon and CSHL, jointly, in the course of carrying out the
Research Program.
5.2 RESEARCH. Except for Joint Technology, all Technology, information,
data, discoveries and inventions arising from programs of research
carried out by CSHL and its Affiliates, on the one hand, or by Helicon
and its Affiliates, on the other hand, and all intellectual property
rights relating thereto shall be the exclusive property of CSHL or
Helicon and their Affiliates, as the case may be, and shall be returned
to such Party upon termination of this Agreement, except as otherwise
provided in this Agreement. Joint Technology shall be jointly owned by
the Parties.
5.3 CSHL FILING, PROSECUTION AND MAINTENANCE. CSHL shall have the
exclusive right and obligation:
(a) to file applications for letters patent on any patentable
invention included in CSHL Technology, or in Joint Technology
which relate to cell lines, cloning of cell lines and
methodologies for determining the effect of Compounds on
biochemical processes; provided, however, that CSHL shall
provide to Helicon copies of all patent applications prior to
filing for the purpose of obtaining substantive comment of
Helicon patent counsel, consult with Helicon regarding
countries in which such patent applications should be filed,
and shall file patent applications in those countries where
Helicon requests that CSHL file; and further provided, that
CSHL, at its option and expense, may file in countries where
Helicon does not request that CSHL file;
(b) to prosecute all pending and new patent applications within
CSHL Technology, or Joint Technology which relate to cell
lines, cloning of cell lines and methodologies for determining
effect of Compounds on biochemical processes, and to respond
to oppositions filed by Third Parties against the grant of
letters patent for such applications, provided that CSHL shall
also provide to Helicon copies of all essential documents
relating to prosecution of all patent applications and/or
oppositions filed by Third Parties in a timely manner for the
purpose of obtaining substantive comment of Helicon patent
counsel;
(c) to maintain in force any patent applications and letters
patent included in CSHL Patents or Joint Patents which CSHL
has filed and is prosecuting by duly filing all necessary
papers and paying any fees required by the patent laws of the
particular
88
<PAGE> 90
country in which such patent applications were filed or
letters patent were granted; and
(d) to notify Helicon in a timely manner of any decision to
abandon a pending patent application or an issued patent
included in CSHL Patents or Joint Patents which CSHL has filed
and is prosecuting. Thereafter, Helicon shall have the option,
at its expense, of continuing to prosecute any such pending
patent application or of keeping the issued patent in force.
5.4 HELICON FILING, PROSECUTION AND MAINTENANCE. Helicon shall have the
exclusive right and obligation:
(a) to file applications for letters patent on any patentable
invention included in Helicon Technology, or in Joint
Technology other than those under Section 5.3 which relate to
new Compounds and new therapeutic uses or manufacturing
processes of known Compounds; provided, however, that Helicon
provide to CSHL copies of all patent applications prior to
filing for the purpose of obtaining substantive comment of
CSHL patent counsel, consult with CSHL regarding countries in
which such patent applications should be filed, and shall file
patent applications in those countries where CSHL requests
that Helicon file; and further provided, that Helicon, at its
option and expense, may file in countries where CSHL does not
request that Helicon file;
(b) to prosecute all pending and new patent applications involving
Helicon Technology, or Joint Technology which relate to new
Compounds and new therapeutic uses or manufacturing processes
of known Compounds, and to respond to oppositions filed by
Third Parties against the grant of letters patent for such
applications; provided that Helicon shall also provide to CSHL
copies of all essential documents relating to prosecution of
all patent applications and/or oppositions filed by Third
Parties in a timely manner for the purpose of obtaining
substantive comment of CSHL patent counsel;
(c) to maintain in force any patent applications and letters
patent included in Helicon Patents or Joint Patents which
Helicon has filed and is prosecuting by duly filing all
necessary papers and paying any fees required by the patent
laws of the particular country in which such patent
applications were filed or letters patent were granted; and
(d) to notify CSHL in a timely manner of any decision to abandon a
pending patent application or an issued patent included in
Helicon Patents or Joint Patents which Helicon has filed and
is prosecuting. Thereafter, CSHL shall have the option, at its
expense, of continuing to prosecute any such pending patent
application or of keeping the issued patent in force.
5.5 JOINT FILING, PROSECUTION AND MAINTENANCE. Helicon and CSHL shall be
jointly responsible for taking all necessary actions to obtain, sustain
and enforce patent protection for Joint Technology other than those
under Sections 5.2 and 5.3 [excluding patent applications outside the
Field] including, without derogation from the foregoing:
89
<PAGE> 91
(a) filing applications for patents on any patentable inventions
included within Joint Technology other than those under
Sections 5.2 and 5.3; provided that any Party wishing to file
such application shall inform the other Party regarding
countries in which such applications should be filed and shall
provide the other Party with copies of all patent applications
prior to filing for the purpose of obtaining substantive
comment of the other Party's patent counsel;
(b) prosecuting all pending and new patent applications regarding
Joint Patents other than those under Sections 5.2 and 5.3 and
responding to opposition or any other form of action for
invalidity or revocation of Joint Patents other than those
under Section 5.2 and 5.3 filed by Independent Third Parties
against the grant of patents for such applications;
(c) maintaining in force any patents included within Joint Patents
other than those under Sections 5.2 and 5.3 by duly filing all
necessary papers and paying any fees required by the patent
laws of the particular country in which such patents were
granted; and
(d) conferring with each other with respect to the appropriate
response to any assertion that Joint Patents infringe upon
patents of Independent Third Parties.
Each Party undertakes to provide all necessary assistance to the other
Party to achieve the objectives of this Section 5.5. Both Parties shall
continue, through patent agents, to prosecute and maintain all relevant
patent property, relating to Technology within the Field in full
consultation with each other. Each Party shall keep the other Party
informed as to all developments with respect to Joint Patents by
copying all documents and correspondence related to such protection and
maintenance.
If the Party who filed it decides to abandon a patent application or an
issued patent included within Joint Patents, the other Party shall have
the option, at its expense, of continuing to prosecute any such patent
application or of keeping the issued patent in force. If a Party elects
to file, at its own expense, patent applications in respect of Joint
Patents in countries in which the other Party has elected not to join
in filing, such Party shall have the unrestricted right to negotiate
licenses with Independent Third Parties in such nonelected countries or
exploit it directly.
5.6 PATENT EXPENSES AND COUNSEL. Helicon shall reimburse CSHL for its
reasonable out-of-pocket fees, expenses and disbursements in connection
with the prosecution of patent applications, and the issuance,
maintenance and extension of patents under Sections 5.3 and 5.5. The
parties shall retain mutually acceptable patent counsel.
5.7 PATENT EXTENSIONS. In the event any patent in the Joint Patents, CSHL
Patents or Helicon Patents is eligible for extension or Supplementary
Protection Certificate, the Parties shall determine for which patents,
applications for extension shall be filed.
90
<PAGE> 92
5.8 INFRINGEMENT. Each Party shall promptly inform the other Party in
writing of any suspected, alleged or threatened infringement of any
Helicon Patents, CSHL Patents or Joint Patents of which it becomes
aware.
(a) With respect to Helicon Patents which are not also Joint
Patents, Helicon shall have the right but not the obligation
to bring, at Helicon's expense and in its sole control an
appropriate action against any Person or entity infringing the
Helicon Patent. If Helicon does not bring such action within
forty-five (45) days of notification thereof, CSHL shall have
the right, but not the obligation, to bring at CSHL's expense
and in its sole control, such appropriate action.
(b) With respect to CSHL Patents which are not also Joint Patents,
CSHL shall have the right but not the obligation to bring, at
CSHL's expense and in its sole control an appropriate action
against any Person or entity infringing the CSHL Patent. If
CSHL does not bring such action within forty-five (45) days of
notification thereof, Helicon shall have the right, but not
the obligation, to bring at Helicon's expense and in its sole
control, such appropriate action.
(c) With respect to third party infringement of Joint Patents
which are neither Helicon Patents nor CSHL Patents, the
Parties shall confer and take such action and allocate
expenses and recoveries in such manner, as they may agree. In
the absence of agreement, the rules applicable to Helicon
Patents which are not also Joint Patents shall apply to the
Joint Patent in question.
(d) Any Party not bringing an action under this Section, if it so
desires, may also be represented by separate counsel of its
own selection, the fees for which counsel shall be paid by it;
but such Party shall fully cooperate with the Party bringing
such action. The Party which is not in control of any action
brought pursuant to this Section may elect to contribute fifty
percent of the costs of litigation against such third party
infringer by providing written notice to the controlling Party
within ninety days after such action is first brought. If the
non-controlling Party elects to bear fifty percent of such
litigation costs it shall receive fifty percent of any damage
award or settlement resulting from such action. If the
non-controlling Party does not elect to share such litigation
costs it shall not participate in any damage award or
settlement resulting from such action.
(e) Should either Party commence a suit under the provisions of
this Section 5.8 and thereafter elect to abandon such suit,
the abandoning Party shall give timely notice to the other
Party who may, if it so desires, continue prosecution of such
suit, provided that the sharing of expenses and any recovery
in such suit shall be as agreed upon between both Parties.
5.9 DISCLOSURE OF INVENTIONS. Each Party shall promptly inform the other
Party about all inventions concerning the Initial Identified Target
and/or any Additional Target that are conceived, made or developed in
the course of carrying out the Research Program by employees or
Affiliates of, or consultants to, that Party solely, or jointly with
employees or Affiliates of, or consultants to the other Party. This
Agreement shall not be construed to
91
<PAGE> 93
obligate a Party to disclose to the other Party any invention which
does not concern the Field.
5.10 GRANT OF LICENSE. Subject to Section 5.12 and to any rights held by the
National Institutes of Health (including without limitations rights
pursuant to 37 C.F.R. Part 401), CSHL hereby grants to Helicon a
perpetual, worldwide, royalty-free, exclusive license, including the
right to sublicense, under the CSHL Patents, the CSHL Improvements and
CSHL rights in the Joint Technology to develop, make, have made, use,
and sell Products. In addition, subject to Section 5.12 and to any
rights held by the National Institutes of Health (including without
limitations rights pursuant to 37 C.F.R. Part 401), CSHL hereby grants
to Helicon a perpetual, worldwide, royalty-free, non-exclusive license,
including the right to sublicense, under the CSHL Technology to
develop, make, have made, use, and sell Products. CSHL retains the
right to make and use the CSHL Technology, the CSHL Patents, the CSHL
Improvements and CSHL rights in the Joint Technology for research and
educational purposes. CSHL represents and warrants to Helicon that it
has the right to grant the licenses granted hereunder, and that the
licenses so granted do not conflict with or violate the terms of any
agreement between it and any Independent Third Party.
5.11 GRANTS OF SUBLICENSES. If Helicon grants a sublicense pursuant to this
Article 5, Helicon shall guarantee that any sublicensee fulfills all of
Helicon's obligations under this Agreement. Helicon shall provide CSHL
with copies of all such sublicenses.
5.12 RIGHTS TO PRODUCT IMPROVEMENTS. Notwithstanding Section 5.10, with
respect to CSHL Improvements which are developed during the three-year
period following the termination of the Research Program, Helicon shall
acquire a perpetual, exclusive (nonexclusive in the countries of the
world in which this section might otherwise be deemed to violate
restrictive trade practices laws), worldwide, royalty-free license in
and to such Improvements but only to the extent necessary to guarantee
that Helicon can fully enjoy all the rights granted to it pursuant to
Article 5 with respect to the use of CSHL Technology and CSHL
Improvements developed in the course of the Research Program to
develop, make, have made, use and sell Products; provided, however,
that with regard to any Improvements made by CSHL resulting from
research conducted under the Collaborative Research and License
Agreement, such license shall be granted with respect to any such
Improvements developed during the five-year period following
termination of the Research Program. CSHL retains the right to make and
use the CSHL Improvements for research and educational purposes. CSHL
shall promptly and fully notify Helicon of any such CSHL Technology
developed after the termination of the Research Program.
5.13 LICENSES UPON TERMINATION. Upon termination of this Agreement pursuant
to Section 7.1, Helicon shall grant CSHL a perpetual, worldwide,
royalty-free, non-exclusive license under Helicon's rights in the Joint
Technology for research purposes only.
5.14 DEFENSE OF INFRINGEMENT CLAIMS. If CSHL or Helicon, or any of their
respective licensees or their customers, shall be sued by a Third Party
for infringement of a patent because of the research, development,
manufacture, use or sale of Products, the Party which has been sued
shall promptly notify the other in writing of the institution of such
suit. CSHL shall give to Helicon all authority (including the right to
exclusive control of the defense of any such suit, action, or
proceeding and the exclusive right to compromise, litigate, settle, or
92
<PAGE> 94
otherwise dispose of any such suit, action, or proceeding), information
and assistance necessary to defend or settle any such suit, action, or
proceeding. Helicon shall bear the expenses of such defense, including
the amount of any settlement, or any final judgment finding
infringement.
5.15 HOLD HARMLESS. CSHL agrees to defend, protect, indemnify, and hold
harmless Helicon and any sublicensee of Helicon, from and against any
loss or expense arising from any proven claim of a Third Party that it
has been granted rights by CSHL, and that Helicon or any sublicensee of
Helicon in exercising their rights granted to Helicon by CSHL pursuant
to this Agreement, has infringed upon such rights granted to such Third
Party by CSHL. Helicon agrees to defend, protect, indemnify, and hold
harmless CSHL from and against any liability, claim, loss, cost, or
expense arising from any claim for product liability based upon
Helicon's manufacture, use, or sale of any Product. At the time a
Product is introduced commercially, Helicon shall obtain and maintain
product liability insurance in amounts customary to protect against
liabilities associated with the manufacture, use or sale of
pharmaceutical products.
5.16 THIRD PARTY LICENSES. If Helicon determines that the manufacture, use,
or sale by Helicon of a Product in any country would infringe a patent
owned by a Third Party, Helicon and CSHL shall attempt to obtain a
license under such patent. If either Helicon or CSHL is of the opinion
that such manufacture, use, or sale would not infringe such patent
owned by a Third Party, Helicon may, at its election and expense, bring
suit against such Third Party seeking a declaration that such patent is
invalid or not infringed by Helicon's manufacture, use or sale of
Product, or may bring opposition, nullity, or other proceedings against
such patent, as appropriate. If Helicon is unsuccessful in such suit,
it shall join CSHL in an attempt to obtain a license under such patent.
ARTICLE 6
DEVELOPMENT AND COMMERCIALIZATION
6.1 GENERAL INTENT. CSHL and Helicon affirm their intent to comply with
applicable regulations relating to inventions developed under GPR.
6.2 INCENTIVE TO COMMERCIALIZE. CSHL has determined that the licenses it
grants under this Agreement are necessary as an incentive for
commercial development by Helicon of the intellectual property
licensed.
6.3 OBLIGATION TO COMMERCIALIZE. Helicon shall use reasonably diligent
efforts to commercialize Products.
6.4 TECHNICAL ASSISTANCE. CSHL shall provide to Helicon or any Affiliate or
sublicensee of Helicon, at Helicon's request and expense, any
assistance reasonably necessary to enable Helicon or such Affiliate or
sublicensee to manufacture, use, or sell each Product and to enjoy
fully all the rights granted to Helicon pursuant to this Agreement.
6.5 REPORTS. Helicon shall provide CSHL with a written annual report
regarding the development, commercial use or intended use of all
intellectual property licensed hereunder
93
<PAGE> 95
on or before February 28 in each year during the Research Program and
while any CSHL Patents or Joint Patents are effective or any
applications are pending for CSHL Patents or Joint Patents.
6.6 REVERSION OF RIGHTS. If Helicon elects to discontinue development of a
Product to its commercialization or if a sublicense for a Product is
terminated, and if that Product does not serve essentially the same
function as a Product which Helicon has elected to develop, is in the
process of developing, or has developed, to commercialization or which
Helicon has sublicensed, then Helicon shall so notify CSHL, and all
rights granted hereunder to that Product shall revert to CSHL on terms
to be mutually agreed, including the payment of royalties to Helicon.
ARTICLE 7
TERM, EXTENSION, TERMINATION AND DISENGAGEMENT
7.1 TERM. Unless sooner terminated or extended, this Agreement shall expire
at the end of the Research Program, except that the licenses granted in
Article 5 shall continue.
7.2 EVENTS OF TERMINATION. The following events shall constitute events of
termination (each an "EVENT OF TERMINATION"):
(a) Failure by one Party to comply with any of its obligations
contained in this Agreement shall entitle the other Party to
give the Party in default written notice in order to cure such
default. If such default is not remedied within sixty days
after receipt of such notice, the notifying Party shall be
entitled without prejudice to any and all rights conferred to
it by this Agreement, to terminate this Agreement by giving
notice with immediate effect. The right of either Party to
terminate this Agreement as provided shall not be affected in
any way by its waiver of or failure to take actions with
respect to any previous default.
(b) CSHL or Helicon makes an assignment for the benefit of its
creditors, becomes insolvent, files a petition in bankruptcy,
petitions or applies to any tribunal for the appointment of a
custodian, receiver or any trustee for it or a substantial
part of its assets, or commences any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; or if there has been filed
any such petition or application against CSHL or Helicon, or
any such proceeding has been commenced against it, in which an
order for relief is entered or which remains undismissed for a
period of sixty (60) days or more; or CSHL or Helicon CSHL or
Helicon by any act or omission indicates its consent to,
approval of or acquiescence in, any such petition, application
or proceeding or order for relief or the appointment of a
custodian, receiver or any trustee for it or any substantial
part of any of its properties, or is the subject of any such
custodianship, receivership or trusteeship that continues
undischarged for a period of sixty (60) days or more.
94
<PAGE> 96
ARTICLE 8
CONSEQUENCES OF TERMINATION
8.1 TERMINATION UPON THE OCCURRENCE OF AN EVENT OF TERMINATION. Upon the
occurrence of any Event of Termination set forth in Section 7.2, for a
period of sixty (60) days from the date of the occurrence of any Event
of Termination, the Parties shall negotiate in good faith to resolve
the issue in a mutually agreeable manner, and if the Parties are unable
to resolve the issue, then the Party not responsible for such Event of
Termination may, by notice to the other Party, terminate this
Agreement. If Helicon terminates this Agreement pursuant to this
Section, the license provided in Article 5 shall continue. If CSHL
terminates this Agreement pursuant to this Section, the license
provided in Article 5 shall also terminate.
8.2 SURVIVAL OF OBLIGATIONS: RETURN OF CONFIDENTIAL INFORMATION.
Notwithstanding any termination of this Agreement, the obligations of
the Parties with respect to the protection and nondisclosure of
Confidential Information, including those set forth in Article 4, shall
survive and continue to be enforceable. Upon any termination of this
Agreement, each Party shall promptly return to the other Party all of
that other Party's Confidential Information, and all copies thereof.
CSHL and Helicon acknowledge that after termination of this Agreement
each Party will be free to use its own Confidential Information and
Technology without restriction.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES. Each of Helicon and CSHL represents
and warrants as follows:
(a) GOOD STANDING. It is a corporation duly organized, validly
existing and is in good standing under the laws of its
jurisdiction of incorporation and has all requisite power and
authority, corporate or otherwise, to conduct its business as
now being conducted, to own, lease and operate its properties
and to execute, deliver and perform this Agreement.
(b) PROPER AUTHORIZATION. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary
corporate action and do not and will not (i) require any
consent or approval of its stockholders, (ii) violate any
provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect
having applicability to it or any provision of its charter or
By-Laws, or (iii) result in a breach of or constitute a
default under any material agreement, mortgage, lease,
license, permit or other instrument or obligation to which it
is a Party or by which it or its properties may be bound or
affected.
(c) BINDING AGREEMENT. This Agreement is a legal, valid and
binding obligation of it, enforceable against it in accordance
with its terms and conditions, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
moratorium,
95
<PAGE> 97
reorganization or similar laws, from time to time in effect,
affecting creditors' rights generally.
(d) ABSENCE OF CONFLICT. It is not under any obligation to any
Person, contractual or otherwise, that is conflicting or
inconsistent in any respect with the terms of this Agreement
or that would impede the diligent and complete fulfillment of
its obligations hereunder.
(f) TITLE. Each of Helicon and CSHL for itself represents it has
and will maintain for the duration of this Agreement good and
marketable title to or valid leases or licenses for, all of
its properties, rights and assets, excluding patent property,
to be used in the fulfillment of its responsibilities under
the Research Program, subject to no claim of any third party
other than the relevant lessors or licensors.
ARTICLE 10
COVENANTS
10.1 AFFIRMATIVE COVENANTS OTHER THAN REPORTING REQUIREMENTS. Throughout
the term of this Agreement, each of Helicon and CSHL shall:
(a) Comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
government authority to the extent necessary to conduct the
Research Program;
(b) Maintain and preserve all of its properties, rights and assets
to be used in the proper conduct of the Research Program in
good working order and condition in accordance with the
general practice of other companies of similar size and
character; and
(c) Conduct all experiments related to the Research Program and
maintain all facilities used in connection therewith in
accordance with Medical Research Council Guidelines, where
applicable, and with all applicable federal, state, and local
environmental requirements.
ARTICLE 11
DISPUTE RESOLUTION
11.1 ARBITRATION. In the event Helicon and CSHL cannot agree on any matter
requiring agreement between the Parties, the matter of differences
shall be determined by arbitration. Arbitration shall be conducted
under the Commercial Arbitration Rules of the American Arbitration
Association by one (1) Person appointed by the Parties or, if the
Parties cannot agree within thirty (30) days following notification by
one Party that it wishes to refer a matter to arbitration, by such
Person empowered by the American Arbitration Association to so appoint
an arbitrator. Arbitration shall take place in a location agreed to by
the Parties, or absent such agreement, chosen by the arbitrator. The
decision of the arbitrator shall be final and binding on both Parties.
The fees and expenses of the arbitrator shall be borne equally by the
Parties.
96
<PAGE> 98
11.2 LITIGATION. In the event of a judicial proceeding concerning the
construction, compliance with or enforcement of the terms and
conditions of this Agreement, the Parties expressly submit to the
jurisdiction and competence of the federal and state courts in the
State of New York, and expressly waive any other judicial forum or
venue to which they may be entitled by reason of domicile, residence or
otherwise. This submission by the Parties to the jurisdiction and
competence of the courts in the State of New York shall in no way
prejudice or affect the right of either Party to enforce any judgment
or any arbitral award in any court of competent jurisdiction, wherever
located.
ARTICLE 12
NOTICES
12.1 NOTICES. Any notice, statement, payment or other document required to
be given hereunder shall be in writing and shall be given either
personally, by mailing the same, postage prepaid, by certified or
registered mail (return receipt requested), in the absence of an actual
or apprehended disruption of mail service or delivered by telecopier
addressed as follows, or to such other addresses as may be designated
from time to time by notice given, in the manner provided in this
Article 12.
If to Helicon: Helicon Therapeutics, Inc.
106 Charles Lindbergh Boulevard
Uniondale, New York 11553
Attention: Chief Executive Officer
Telecopier: (516) 222-0114
If to CSHL: Cold Spring Harbor Laboratory
Hershey Building
One Bungtown Road
Cold Spring Harbor, New York 11724
Attention: Timothy Tully, Ph.D. and
John Maroney, Assistant
Administrative Director
Telecopier: (516) 367-8855
Notices given personally shall be deemed given as of the date delivered. Notices
given by telecopier shall be deemed given on the first business day following
the date of transmission. Mailed notices shall be deemed given on the fifth
business day following the date of such mailing.
97
<PAGE> 99
ARTICLE 13
MISCELLANEOUS
13.1 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective legal
representatives, successors and permitted assigns.
13.2 HEADINGS. The headings contained in this Agreement are for convenience
of reference only and do not form a part of this Agreement, and no
construction or inference shall be derived therefrom.
13.3 ENTIRE AGREEMENT. This Agreement and the documents and other agreements
referred to herein or signed concurrently herewith set forth the entire
agreement and understanding of the Parties.
13.4 SEVERABILITY. In the event that any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable because it is
invalid or in conflict with any law of any relevant jurisdiction, the
validity of the remaining provisions shall be construed and enforced as
if the Agreement did not contain the particular provisions held to be
unenforceable.
13.5 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
13.6 AMENDMENT, WAIVER, ETC. This Agreement may be amended, modified,
superseded or canceled, and any of the terms hereof may be waived, only
by a written instrument executed by each Party hereto or, in the case
of waiver, by the Party or Parties waiving compliance. The delay or
failure of any Party at any time or times to require performance of any
provision hereof shall in no manner affect the rights at a later time
to enforce the same. No waiver by any Party of any condition or of the
breach of any term contained in this Agreement, whether by conduct or
otherwise, in any one or more instance, shall be deemed to be, or
construed as, a further or continuing waiver of any such condition or
of the breach of such term or any other term of this Agreement.
13.7 FORCE MAJEURE. In the event that either Party is prevented from or is
unable to perform any of its obligations under this Agreement due to
any act of God, fire, casualty, flood, war, strike, lockout, failure of
public utilities, injunction of any act, exercise, assertion or
requirement of governmental authority, including any governmental law,
order, or regulation permanently or temporarily prohibiting or reducing
the level of research and development work hereunder, epidemic,
destruction of production facilities, riots, insurrection, inability to
procure or use materials, labor, equipment, transportation or energy
sufficient to meet experimentation needs, or any other cause beyond the
reasonable control of the Party invoking this Article 13 if such Party
shall have used its best efforts to avoid such occurrence, such Party
shall give notice to the other Party in writing promptly, and thereupon
the affected Party's performance shall be excused and the time for
performance shall be extended for the period of delay or inability to
perform due to such occurrence.
98
<PAGE> 100
13.8 INDEPENDENT CONTRACTOR. Nothing in this Agreement shall be construed as
constituting both Parties as partners or joint venturers with respect
to this Agreement. Both Parties are independent contractors under this
Agreement.
13.9 ASSIGNMENT AND SUCCESSORS. This Agreement and the rights and interests
hereunder may not be assigned by either Party in whole or in part
except to an Affiliate, a purchaser of all or substantially all of the
assets of a Party or to any successor corporation resulting from any
merger or consolidation of either Party with or into such corporation.
13.10 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as a sealed instrument in their names by their properly and duly authorized
representatives as of the date first written above.
HELICON THERAPEUTICS, INC.
By: /s/
--------------------------------------
By:
--------------------------------------
COLD SPRING HARBOR LABORATORY
By: /s/
--------------------------------------
99
<PAGE> 101
EXHIBIT A
PROPRIETARY TECHNOLOGY HELD THROUGH LICENSE FROM ONCOGENE SCIENCE, INC.
**
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
100
<PAGE> 102
EXHIBIT B
PROPRIETARY TECHNOLOGY HELD THROUGH LICENSE FROM COLD SPRING HARBOR LABORATORY
**
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
101
<PAGE> 103
EXHIBIT C
RESEARCH PROGRAM
**
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
102
<PAGE> 104
EXHIBIT D
ONCOGENE SCIENCE, INC. ROBOTICS TECHNOLOGY
Helicon's robotics technology consists of the know-how which is embodied in
Helicon's robotics equipment.
Helicon does not grant to Roche any rights under Helicon's robotics technology,
and Helicon will have no obligation to and Roche will have no right to request
that Helicon provide Roche with any access to any equipment embodying Helicon's
robotics technology. In particular, Helicon will not assemble at Roche's
premises or deliver to Roche's premises, any equipment embodying Helicon's
robotics technology.
103
<PAGE> 105
EXHIBIT E
FIRST YEAR RESEARCH PLAN
**
- ---------------
** This portion has been redacted pursuant to a request for confidential
treatment.
104
<PAGE> 106
EXHIBIT G
LICENSE AGREEMENT BETWEEN HELICON THERAPEUTICS, INC.
AND COLD SPRING HARBOR LABORATORY
This LICENSE AGREEMENT, made the _____ day of ______________, 1997, by
and between Cold Spring Harbor Laboratory ("CSHL"), a New York non-profit
corporation having its principal place of business at Hershey Building, One
Bungtown Road, Cold Spring Harbor, New York 11724, and Helicon Therapeutics,
Inc. ("Company"), a Delaware corporation, having its principal place of business
at 106 Charles Lindbergh Boulevard, Uniondale, New York 11553.
WHEREAS, the Company was organized to discover, develop and market
pharmaceutical products; and
WHEREAS, CSHL is engaged in basic research relating to genes associated
with long term memory; and
WHEREAS, the Company wishes to obtain the use of certain proprietary
technology controlled by CSHL for identifying the effect of compounds on genes
and gene expression which is useful in the process of developing products for
the treatment and prevention of human disease; and
NOW, THEREFORE, in consideration of the agreements and covenants herein
and for other valuable consideration, receipt of which is hereby acknowledged,
it is mutually agreed and covenanted by and among the parties to this Agreement
that:
1. Licenses.
a. Subject to any rights held by the National Institutes of
Health ("NIH") (including without limitations rights pursuant
to 37 C.F.R. Part 401), CSHL hereby grants to the Company a
world-wide, ** , exclusive license for a period of ten years,
beginning as of the date of the issuance of Preferred Stock
("Preferred Stock"), $.01 par value per share, by the Company
to CSHL pursuant to paragraph 5 of this Agreement, in the
Field ("long term memory and modulation of CREB ** activity in
synaptic plasticity"), to use and to commercialize the
technology which is the subject of patent applications numbers
as set forth in Exhibit 1 hereto ("Applications") [and certain
other technology, all] covering a method of cloning and
characterizing genes associated with long-term memory.
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
105
<PAGE> 107
However, if any patent or patents ("Patents") are issued as
the result of the Applications or divisionals or continuations
of the Applications, the rights granted under this paragraph
1(a) will terminate as to the territory within the scope of
the Patents and the provisions of paragraph 1(b) below shall
apply.
b. Subject to any rights held by NIH (including without
limitations rights pursuant to 37 C.F.R. Part 401), CSHL
hereby grants to the Company a ** , exclusive license, for a
period beginning on the date of the first issuance of the
Patents and terminating on the date of the last expiration of
the Patents, in the Field, to use and commercialize the
"Patent Rights," which are (i) all Patents issued from the
Applications or from divisionals or continuations of the
Applications, (ii) all claims of United States and foreign
continuation-in-part applications and patents which are
directed to subject matter specifically described in the
Applications, (iii) all claims of all foreign patent
applications and patents which are directed to subject matter
specifically described in the United States patents and/or
patent applications described in (i) or (ii), and (iv) any
reissues or reexaminations; or United States patents described
in (i), (ii) or (iii).
c. The licenses granted in paragraphs 1(a) and 1(b) may by mutual
agreement be extended on a case by case basis.
d. CSHL retains the right to make and use the technology and
Patent Rights licensed in paragraphs 1(a) and 1(b) for
research and educational purposes.
2. CSHL shall have the exclusive right and obligation (a) to prosecute the
Applications and to respond to oppositions filed by third parties
against the grant of letters patent for the Applications, (b) to
maintain in force the Patents by filing all necessary papers and paying
any fees required by the patent laws of the particular country in which
the Patents were granted, and (c) to notify the Company in a timely
manner of any decision to abandon an Application or a Patent. The
Company will reimburse CSHL for its reasonable out-of-pocket fees,
expenses and disbursements in connection with the prosecution of the
Applications, and the issuance, maintenance and extension of the
Patents. The total costs incurred in these activities by CSHL as of
December 31, 1996 is ** the Company will reimburse CSHL the sum of **
for the costs incurred as of December 31, 1996 within 30 days after the
date of the issuance of the Preferred Stock by the Company to CSHL
pursuant to paragraph 5 of this Agreement.
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
106
<PAGE> 108
During the term of the Agreement, CSHL will provide quarterly
statements to the Company of the costs incurred in connection with the
prosecution of the Applications, and the issuance, maintenance and
extension of the Patents, and the Company shall reimburse CSHL for
those costs within 30 days of receipt of each statement. CSHL agrees to
utilize the services and capabilities of the Company's patent counsel
whenever practicable, and to retain only patent counsel approved by the
Company, which approval shall not be unreasonably withheld.
3. CSHL represents and warrants to the Company that (a) it is the holder
of the Applications, (b) it has the right to grant the licenses granted
in this Agreement, (c) it is not aware of any claims made against the
Applications, and that (d) the licenses granted do not conflict with or
violate the terms of any agreement between CSHL and any third party.
4. Protection of Rights.
a. Each party shall promptly notify the other party in writing of
any alleged or threatened infringement of the Patents of which
it becomes aware. CSHL shall have the right but not the
obligation to bring, at its own expense and in its sole
control, an appropriate action against any person or entity
infringing the Patents. If CSHL does not bring such an action
within forty-five days of notification thereof by the Company,
the Company shall have the right, but not the obligation, to
bring at its own expense and in its sole control, such
appropriate action. The party not bringing action under this
paragraph shall be entitled to separate representation in the
matter by counsel of its own choice and at its own expense,
and shall fully cooperate with the party bringing the action.
b. The party which is not in control of any action brought
pursuant to paragraph 4(a) may elect to contribute fifty
percent of the costs of litigation against such third party
infringer by providing written notice to the controlling party
within ninety days after such action is first brought. If the
non-controlling party elects to bear fifty percent of such
litigation costs, it shall receive fifty percent of any damage
award or settlement resulting from such action. If the
non-controlling party does not elect to share such litigation
costs, it shall not participate in any damage award or
settlement resulting from such action.
c. If CSHL or the Company is sued by a third party for
infringement of a patent because of the Company's exercise of
the rights granted in this Agreement, the party which has been
sued shall promptly notify the other party in writing of the
institution of the suit. CSHL shall have the right, but not
the obligation, to defend or settle at its own expense such
suit, action or proceeding. The Company shall give to CSHL all
authority (including the right to exclusive control of the
defense of any such suit, action, or proceeding and the
exclusive right to compromise, litigate, settle or otherwise
dispose of any such suit, action or proceeding), information
and assistance necessary to defend or settle any such suit,
action or proceeding. If CSHL does not choose to defend or
settle any such suit, action or
107
<PAGE> 109
proceeding, the Company shall have the right, but not the
obligation, to defend or settle at its own expense such suit,
action or proceeding, and CSHL shall give to the Company all
authority, information and assistance necessary to defend or
settle any such suit, action or proceeding.
d. CSHL agrees to indemnify and hold harmless the Company from
and against any loss or expense arising from any proven claim
of a third party, other than NIH, that it has been granted
rights by CSHL and that the Company in exercising its rights
granted to it by CSHL pursuant to this Agreement, has
infringed upon the rights granted to such third party by CSHL.
If the Company is sued by a third party on a claim that it has
been granted rights by CSHL and that the Company in exercising
the rights granted by CSHL pursuant to this Agreement, has
infringed upon the rights granted to such third party by CSHL,
the Company shall promptly notify the other party in writing
of the institution of the suit.
5. In consideration for the rights granted herein, the Company will pay
CSHL ** and will issue to CSHL ** shares of its Preferred Stock within
20 days of the date of this Agreement as more fully set forth in the
Subscription Agreement.
6. The Company shall use reasonably diligent efforts to commercialize the
technology and the Patent Rights licensed. If, at the end of five years
from the date of the issuance of Preferred Stock by the Company to CSHL
pursuant to paragraph 5 of this Agreement, the Company is not
diligently pursuing the commercialization of either the technology or
the Patents Rights licensed, then CSHL may terminate the licenses
provided pursuant to this Agreement upon giving six months prior
written notice.
7. Should ownership or control of the Company change due to a transaction
or related series of transactions which result in more than fifty
percent of the Company's voting stock being transferred to a single
entity or related group of entities within a six month period, or in
the sale of all or substantially all of the assets of its business, the
Company shall inform CSHL in writing of the relevant event within
thirty days of its occurrence. If the acquiring entity does not agree
in writing to assume and be bound by the obligations of this Agreement
by providing written notice thereof to CSHL within thirty days of the
date the written notice of the occurrence of the event is provided to
CSHL, CSHL may, at any subsequent time but not later than ninety days
following receipt of notice of occurrence of the event, terminate the
licenses provided pursuant to this Agreement upon giving three months
prior written notice.
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
108
<PAGE> 110
8. CSHL may terminate the licenses granted pursuant to this Agreement upon
thirty days written notice if, at any time, the Company files a
petition in bankruptcy or insolvency before the courts or applies for
the appointment of a receiver or trustee for all of its assets or any
part thereof, or if the Company proposes a written agreement of
consolidation or extension of debts, or if the Company is served with
an involuntary petition against it, filed in any insolvency proceeding,
and such petition is not dismissed within sixty days after its filing,
or if the Company proposes or is a party to any dissolution or
liquidation, or if the Company makes an assignment for the benefit of
creditors.
9. The parties each represents and warrants that:
a. It is an entity duly organized, validly existing and is in
good standing under the laws of its domicile, is qualified to
do business and is in good standing as a corporation in each
jurisdiction in which the conduct of its business or the
ownership of its properties requires such qualification and
has all requisite power and authority to conduct its business
as now being conducted, to own, lease and operate its
properties and to execute, deliver and perform this Agreement.
b. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action
and do not and will not (i) require any consent or approval of
its stockholders (other than that which has been obtained),
(ii) violate any provision of any law, rule, regulation, writ,
judgment, injunction, decree, determination or award presently
in effect having applicability to it or any provision of its
charter, organization agreement or by-laws or (iii) result in
a breach of or constitute a default under any material
agreement, mortgage, lease, license, permit or other
instrument or obligation to which it is a party or by which it
or its properties may be bound or affected.
c. This Agreement is a legal, valid and binding obligation of it
enforceable against it in accordance with its terms and
conditions, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws, from time to time in effect, affecting
creditor's rights generally.
10. All notices shall be mailed via certified mail, return receipt
requested, or courier addressed as follows, or to such other address as
may be designated from time to time:
If to CSHL: At its address as set forth at the
beginning of this Agreement
Attn.: John Maroney
Assistant Administrative Director
109
<PAGE> 111
If to the Company: At its address as set forth at the
beginning of this Agreement
Attn.: Walter Lovenberg
Notices shall be deemed given as of the date of receipt.
11. This Agreement shall be construed in accordance with the laws of the
State of New York. All disputes arising from this Agreement shall be
subject to arbitration in New York City, under the rules and procedures
of the American Arbitration Association.
12. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, successors and
permitted assigns. This Agreement may not be assigned by either party,
except that the parties may assign this Agreement and their rights and
interest, in whole or in part, to any of their affiliates, any
purchaser of all or substantially all of its assets or to any successor
corporation resulting from any merger or consolidation with or into
such corporation.
13. This Agreement may be amended, modified, superseded or canceled, and
any of its terms may be waived, only by a written instrument executed
by each party or, in the case of waiver, by the party or parties
waiving compliance. The delay or failure of any party at any time or
times to require performance of any provision shall in no manner affect
the rights at a later time to enforce the same.
14. No person not a party to this Agreement shall have or acquire any
rights by reason of this Agreement. Nothing contained in this Agreement
shall be deemed to constitute the parties partners with each other or
any other person or entity.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
Helicon Therapeutics, Inc. Cold Spring Harbor Laboratory
By: /s/ By: /s/
----------------------------- ------------------------------
Title: Title:
-------------------------- ---------------------------
110
<PAGE> 112
EXHIBIT 1
CSHL Patent Rights
**
- ---------------
** This portion has been redacted pursuant to a confidential treatment
request.
111
<PAGE> 113
EXHIBIT H
LICENSE AND SERVICES AGREEMENT
BETWEEN HELICON THERAPEUTICS, INC.
AND ONCOGENE SCIENCE, INC.
This agreement was filed as Exhibit 10.33 to this Form 10-K and is incorporated
herein by reference.
112
