SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
Cytel Corporation
________________________________________________________________
(Name of Issuer)
Common Stock, $.01 par value
________________________________________________________________
(Title of Class of Securities)
00023282E1
_________________________________________________________________
(CUSIP Number)
Jeremy L. Curnock Cook John C. MacMurray, Esq.
Rothschild Asset Management Ltd. Reboul, MacMurray, Hewitt,
Five Arrows House Maynard & Kristol
St. Swithin's Lane 45 Rockefeller Plaza
London, EC4N 8NR, England New York, New York 10111
Tel. 071-280-5000 Tel. (212) 841-5700
_________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 7, 1997
___________________________________
(Date of Event Which Requires
Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
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CUSIP No. 00023282E1 Page 2 of 32 Pages
_______________________________________________________________
1) Name of Reporting Person International
S.S. or I.R.S. Identification Biotechnology
No. of Above Person Trust plc
_________________________________________________________________
2) Check the Appropriate Box (a) [ ]
if a Member of a Group (b) [ ]
_________________________________________________________________
3) SEC Use Only
_________________________________________________________________
4) Source of Funds WC
_________________________________________________________________
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
_________________________________________________________________
6) Citizenship or Place
of Organization United Kingdom
_________________________________________________________________
Number of 7) Sole Voting 2,792,857 shares of
Shares Beneficially Power Common Stock,
Owned by $.01 par value
Reporting Person: ("Common Stock")
________________________________________
8) Shared Voting
Power -0-
________________________________________
9) Sole Disposi- 2,792,857 shares of
tive Power Common Stock
________________________________________
10) Shared Dis-
positive Power -0-
________________________________________
11) Aggregate Amount Beneficially 2,792,857 shares of
Owned by Reporting Person Common Stock
_________________________________________________________________
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
_________________________________________________________________
13) Percent of Class
Represented by 8.7%
Amount in Row (11)
_________________________________________________________________
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CUSIP No. 00023282E1 Page 3 of 32 Pages
14) Type of Reporting
Person CO
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CUSIP No. 00023282E1 Page 4 of 32 Pages
Amendment No. 1 to Schedule 13D
_______________________________
Reference is hereby made to the statement on Schedule 13D
originally filed with the Securities and Exchange Commission on April 3,
1995 (the "Schedule 13D").
Item 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, $.01 par value (the
"Common Stock"), of Cytel Corporation, a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are located at
3525 John Hopkins Court, San Diego, California 92121.
Item 2. IDENTITY AND BACKGROUND.
(a) The undersigned hereby files this Schedule 13D on behalf of
International Biotechnology Trust plc, a corporation organized under the
laws of the United Kingdom ("IBT" or the "Reporting Person"). The name,
business address and occupation of each executive officer and director of
IBT is set forth on Schedule A hereto.
(b) The principal business of IBT is that of a publicly-traded
investment trust company.
(c) IBT's principal business address is Five Arrows House, St.
Swithin's Lane, London EC4N 8NR, England.
(d) Neither IBT nor any of the persons identified in this Item 2
has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) Neither IBT nor any of the persons identified in this Item 2
has, during the last five years, been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
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CUSIP No. 00023282E1 Page 5 of 32 Pages
This statement relates to the acquisition by IBT of 1,142,857
shares of Common Stock (the "Shares") pursuant to a Common Stock Purchase
Agreement made as of November 7, 1997 by and between the Issuer and IBT
(the "1997 Purchase Agreement"). A copy of the 1997 Purchase Agreement is
attached hereto as Exhibit A, and any description thereof is qualified in
its entirety by reference thereto. IBT purchased the Shares as part of a
private placement of 4,800,000 shares of Common Stock (the "Private
Placement"). The purchase price for the Shares was $1.75 per share. The
aggregate purchase price paid by IBT for the Shares was $1,999,999.75 and
the source of such funds was IBT's working capital, or funds available for
investment.
IBT acquired 1,600,000 shares of Common Stock pursuant to a
Purchase Agreement made as of November 7, 1994 by and between the Issuer
and Rothschild Asset Management Limited ("RAM") (the "1994 Purchase
Agreement"). A copy of the 1994 Purchase Agreement was filed as Exhibit A
to the original Schedule 13D, and any description thereof is qualified in
its entirety by reference thereto. As further described in Item 6 of this
statement, RAM is the discretionary investment manager of IBT, and in such
capacity acquired the 1,600,000 shares of Common Stock as custodian for,
and for the account of, IBT, which is the beneficial owner of such shares.
The purchase price for the Common Stock purchased under the 1994 Purchase
Agreement was $3.125 per share. The aggregate purchase price paid by RAM
on behalf of IBT was $5,000,000 and the source of such funds was IBT's
working capital, or funds available for investment.
Item 4. PURPOSE OF TRANSACTION.
IBT has acquired Common Stock for investment purposes.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Based on a total of 32,000,000 shares of Common Stock
outstanding after the Private Placement, as reported in a press release
dated December 5, 1997, IBT owns 2,792,857 shares of Common Stock, or
approximately 8.7% of the Common Stock outstanding.
(b) IBT has sole power to vote or direct the voting of and to
dispose or to direct the disposition of the shares of Common Stock referred
to in paragraph (a) above.
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CUSIP No. 00023282E1 Page 6 of 32 Pages
(c) Except as described in this statement, neither IBT nor any
of the persons identified in Item 2 above has effected any transaction in
the Common Stock in the past 60 days.
(d) No other person has the power to direct the receipt of
dividends on, or the proceeds from sales of, the shares of Common Stock
owned by IBT.
(e) Not applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS
OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Pursuant to a contractual agreement, IBT has engaged RAM to act
as its discretionary investment manager. Pursuant to such agreement RAM
manages the business and assets of IBT, which includes the authority to
make decisions regarding the acquisition or disposition of portfolio
securities by IBT and to exercise any rights (including voting rights) with
respect to such securities. IBT has the right to terminate RAM's
appointment as manager at any time if RAM is not performing its duties as
manager to the satisfaction of the Board of Directors of IBT.
Pursuant to the 1997 Purchase Agreement, the Issuer has agreed
to file a registration statement with the Securities and Exchange
Commission as soon as practicable (and in no event later than 90 days)
following the closing of the sale of the Shares, in order to register the
Shares for resale. IBT has agreed not to sell or otherwise transfer or
dispose of any securities of the Issuer other than the Shares that it owns
for a period not to exceed 90 days following the effective date of a
registration statement filed by the Issuer. IBT has agreed that after such
registration is will not effect any sale of the Shares except pursuant to
such registration statement or not until the Issuer has been furnished with
the details of the terms of such other disposition not requiring
registration of the Shares.
Pursuant to the 1994 Purchase Agreement, the Issuer agreed to
file a registration statement with the Securities and Exchange Commission
within 30 days of the closing of the sale of Common Stock under the 1994
Purchase Agreement, in order to register such Common Stock for resale. The
Issuer filed a Registration Statement on Form S-3, which was declared
effective as of December 13, 1994 (SEC Registration No. 33-86860). The
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CUSIP No. 00023282E1 Page 7 of 32 Pages
Issuer will keep such registration effective for three years or, if
earlier, until all of the shares purchased under the 1994 Purchase
Agreement have been sold pursuant thereto.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - 1997 Purchase Agreement (Appears at
Page 8)
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CUSIP No. 00023282E1 Page 8 of 32 Pages
SIGNATURE
_________
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: December 9, 1997
INTERNATIONAL BIOTECHNOLOGY
TRUST PLC
By: /s/ Jeremy L. Curnock Cook
___________________________
Director
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CUSIP No. 00023282E1 Page 9 of 32 Pages
SCHEDULE A
__________
EXECUTIVE OFFICERS AND DIRECTORS OF IBT
The business address of each person listed below is c/o
Rothschild Asset Management Limited, Five Arrows House, St. Swithin's Lane,
London EC4N 8NR, England. The occupation of each person listed below
refers to his relationship to IBT.
Name Occupation Citizenship
____ __________ ___________
John M. Green-Armytage Chairman U.K.
Donald Cecil Deputy U.S.
Chairman
Gary M. Brass Director U.K.
Jeremy L. Curnock Cook Director U.K.
Peter B. Collacott Director U.K.
Stephen A. Duzan Director U.S.
James D. Grant Director U.S.
Howard E. Greene Director U.S.
Dennis M.J. Turner Director U.K.
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CUSIP No. 00023282E1 Page 10 of 32 Pages
EXHIBIT A
_________
COMMON STOCK
PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of November 7, 1997 (the
"Effective Date"), by and between CYTEL CORPORATION, a Delaware corporation
with its principal place of business at 3525 John Hopkins Court, San Diego,
California 92121 (the "Company), and the purchaser whose name and address
is set forth on the signature page hereof (the "Purchaser").
AGREEMENT
In consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and the Purchaser hereby agree as
follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES.
Subject to the terms and conditions of this Agreement, the Company has, or
before the Closing (as defined below) will have, authorized the sale and
issuance of up to 5,000,000 shares of its Common Stock (the "Common Stock")
pursuant to the Agreements (as defined below). The shares of Common Stock
sold to the Purchaser hereunder shall be referred to herein as the
"Shares."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
2.1 SALE OF SHARES. At the Closing (as defined in Section 3),
the Company will sell to the Purchaser, and the Purchaser will purchase
from the Company, at a purchase price of $1.75 per Share, the number of
Shares set forth below:
Number of Shares to be Aggregate
Purchased Purchase Price
______________________ ______________
1,142,857 $1,999,999.75
2.2 Separate Agreements. The Company proposes to
___________________
enter the same form of purchase agreement with certain other investors (the
"Other Purchasers") and expects to complete sales of Shares to them. The
Purchaser and the Other Purchasers are
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CUSIP No. 00023282E1 Page 11 of 32 Pages
hereinafter sometimes collectively referred to as the "Purchasers," and
this Agreement and the agreements executed by the Other Purchasers are
hereinafter sometimes collectively referred to as the "Agreements."
2.3 ACCEPTANCE OF PROPOSED PURCHASE OF SHARES. The Company
shall have no obligation hereunder with respect to the Purchaser until the
Company shall execute and deliver to the Purchaser an executed copy of this
Agreement. If this Agreement is not executed and delivered by the Company,
this Agreement shall be of no further force and effect.
SECTION 3. CLOSING AND DELIVERY.
3.1 CLOSING. The Closing of the purchase and sale of the Shares
pursuant to this Agreement (the "Closing" shall be held as soon as
practicable after the satisfaction or waiver of all conditions to Closing
set forth in Sections 7 and 8 hereof, at the offices of Cooley Godward LLP,
4365 Executive Drive, Suite 1100, California 92121, or on such other date
and place as may be agreed to by the Company and the Purchaser. The
Company shall give at least five (5) business days prior written notice to
the Purchaser, in a manner provided for in Section 11 hereof, of the date,
time and location of the Closing. At or prior to the Closing, the
Purchaser shall execute any related agreements or other documents required
to be executed hereunder, dated as of the date of the Closing (the "Closing
Date").
3.2 DELIVERY OF THE SHARES AT THE CLOSING. At the Closing, the
Company shall deliver to the Purchaser stock certificates registered in the
name of the Purchaser, and/or in such nominee name(s) as designated by the
Purchaser, representing the number of Shares to be purchased by the
Purchaser at the Closing as set forth in Section 2.1 against payment of the
purchase price for such Shares. The name(s) in which the stock
certificates are to be issued to the Purchaser are set forth in the Stock
Certificate Questionnaire in the form attached hereto as Appendix I, as
completed by the Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto
as Exhibit A, the Company hereby represents and warrants as of the date
hereof to, and covenants with, the
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CUSIP No. 00023282E1 Page 12 of 32 Pages
Purchaser as follows:
4.1 ORGANIZATION AND STANDING. Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has full corporate power and
authority to own or lease its properties and conduct its business as
presently conducted and as described in the Confidential Offering
Memorandum, dated July 8, 1997, as amended and supplemented by the
Supplement, dated November 6, 1997 (the "Memorandum"), and is duly
qualified as a foreign corporation and in good standing in all
jurisdictions in which the character of the property owned or leased or the
nature of the business transacted by it makes qualification necessary
(except where the failure to be so qualified would not have a material
adverse effect on the business, properties, financial condition or results
or operations of the Company). The Company's only operating subsidiary is
Epimmune Inc. Epimmune Inc. has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
4.2 CORPORATE POWER; AUTHORIZATION. The Company has all
requisite corporate power, and has taken all requisite corporate action, to
execute and deliver this Agreement, sell and issue the Shares and carry out
and perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting the enforcement of creditors' rights
generally, (ii) as limited by equitable principles generally, including any
specific performance, and (iii) as to those provisions of Section 9.3
relating to indemnity or contribution. The execution and delivery of this
Agreement does not, and the performance of this Agreement and the
compliance with the provisions hereof and the issuance, sale and delivery
of the Shares by the Company will not conflict with, or result in a breach
or violation of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien pursuant
to the terms of, the Certificate of Incorporation or Bylaws of the Company
or any statute, law, rule or regulation applicable to the Company or any
state or federal order, judgment or decree applicable to the Company or any
indenture, mortgage, lease or other agreement or instrument to which the
Company or any of its properties is subject, where such
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CUSIP No. 00023282E1 Page 13 of 32 Pages
conflict, breach or violation would have a material adverse effect on the
Company.
4.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when
issued and paid for in compliance with the provisions of this Agreement,
will be validly issued, fully paid and nonassessable and will not be issued
in violation of any preemptive right.
4.4 CONFIDENTIAL OFFERING MEMORANDUM; SEC DOCUMENTS; FINANCIAL
STATEMENTS. Each complete or partial statement or report included as an
appendix to the Memorandum is a true and complete copy of or excerpt from
such document as filed by the Company with the United States Securities and
Exchange Commission (the "SEC"). The Company has filed in a timely manner
all documents that the Company was required to file with the SEC under
Sections 13, 14(a) and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), during the twelve (12) months preceding the
date of this Agreement As of their respective dates (or, if amended, when
amended), all documents filed by the Company with the SEC (the "SEC
Documents") complied in all material respects with the requirements of the
Exchange Act. Neither the Memorandum nor any of the SEC Documents as of
their respective dates contained any untrue statement of material fact or
omitted to state a material fact required (under the federal securities
laws in connection with the sale of the Shares) to be stated therein or
necessary to make the statements made therein. in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents and the Memorandum
(the "Financial Statements") comply as to form in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the financial position of the
Company at the dates thereof and the results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal, recurring adjustments).
4.5 INTELLECTUAL PROPERTY. Except as set forth in the
Memorandum, the Company owns or possesses adequate rights to use all
material patents, patent rights, inventions, trade secrets
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CUSIP No. 00023282E1 Page 14 of 32 Pages
and know-how described or referred to in the Memorandum as owned or used by
it or that are necessary for the conduct of its business as presently
conducted and as described in the Memorandum. Except as set forth in the
Memorandum, the Company has not received any notice of, nor has any
knowledge of, any infringement of or conflict with asserted rights of
others with respect to any patent, patent right, invention, trade secret or
know-how that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the business, properties, financial condition or results or
operations of the Company.
4.6 CAPITALIZATION. All of the Company's outstanding shares of
capital stock have been duly authorized and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of or subject to
any preemptive right or other rights to subscribe for or purchase
securities. The actual authorized and outstanding capital stock of the
Company as of November 5, 1997 is as set forth in the Memorandum. Except
as set forth in the Memorandum, there are no outstanding options to
purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts
or commitments to issue or sell shares of the Company's capital stock or
any such options, rights, convertible securities or obligations.
4.7 LITIGATION. Except as set forth in the Memorandum, there is
no pending or, to the Company's knowledge, threatened, action, suit or
other proceeding to which the Company is a party or to which its property
or assets are subject.
4.8 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state, or local governmental authority on the
part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement except for (a) compliance with
the securities and blue sky laws in the states and other jurisdictions in
which shares of Common Stock are offered and/or sold, which compliance will
be effected in accordance with such laws, and (b) the filing of a
registration statement and all amendments thereto with the SEC as
contemplated by Section 9.1 of this Agreement.
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CUSIP No. 00023282E1 Page 15 of 32 Pages
4.9 NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed
herein or in the Memorandum, since June 30, 1997, there have not been any
changes in the assets, liabilities, financial condition or operations for
the period ended June 30, 1997 except changes in the ordinary course of
business or which have not been, either individually or in the aggregate,
materially adverse.
SECTION 5. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PURCHASER.
5.1 The Purchaser represents and warrants to and covenants with
the Company that:
(a) The Purchaser, into account the personnel and resources it
can practically bring to bear on the purchase of the Shares contemplated
hereby, either alone or together with the advice of the Purchaser's
representative, is knowledgeable, sophisticated and experienced in making,
and is qualified to make, decisions with respect to investments in shares
presenting an investment decision like that involved in the purchase of the
Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered, either alone or with the
Purchaser's representative, all information the Purchaser deems relevant
(including the Memorandum and any SEC Documents) in making an informed
decision to purchase the Shares.
(b) The Purchaser is acquiring the Shares being acquired by the
Purchaser pursuant to this Agreement in the ordinary course of its business
and for its own account for investment only and with no present intention
of distributing any of such Shares or any arrangement or understanding with
any other persons regarding the distribution of such Shares, except in
compliance with Section 5.1 (c).
(c) The Purchaser will no directly or indirectly, offer, sell,
pledge, for or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the securities purchased
hereunder except in compliance with the Securities Act of 1933, as amended
(the "Securities Act"), applicable blue sky laws, and the rules and
regulations promulgated thereunder.
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CUSIP No. 00023282E1 Page 16 of 32 Pages
(d) The Purchaser has completed or caused to be completed the
subscription documents enclosed with this Agreement, including the
Registration Questionnaire, for use in preparation of the Registration
Statement to be filed by the Company, and the answers thereto are true and
correct as of the date hereof and will be true and correct as of the
effective date of the applicable Registration Statement (provided that the
Purchaser shall be entitled to update such information by providing notice
thereof to the Company prior to the effective date of such Registration
Statement).
(e) The Purchaser has, in connection with its decision to
purchase the Securities, relied with respect to the Company and its affairs
solely upon the SEC Documents and the other information delivered to the
Purchaser by the Company as described in Sections 4.4 and 5.1(a) above and
the representations and warranties of the Company contained herein.
(f) The Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act or a
Qualified Institutional Buyer within the meaning of Rule 144A promulgated
under the Securities Act.
(g) The Purchaser has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. Upon the execution
and delivery of this Agreement by the Purchaser, this Agreement shall
constitute a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or laws relating to or affecting the
enforcement of creditors' rights generally, (ii) as limited by equitable
principles generally, including any specific performance, and (iii) as to
those provisions of Section 9.3 relating to indemnity or contribution.
(h) The Purchaser, together with the Purchaser's Affiliates and
Associates (as defined in Rule 12b-2 of the General Rules and Regulations
promulgated under the Exchange Act), is not, and will not by virtue of the
Sections contemplated by this Agreement be, a Beneficial Owner (as defined
in that certain Rights Agreement dated March 19, 1993) of 15% or more of
the outstanding shares of Common Stock of the Company.
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CUSIP No. 00023282E1 Page 17 of 32 Pages
5.2 The Purchaser represents and warrants to and covenants with
the Company that it has not engaged and will not engage in any short sales
of the Company's Common Stock prior to the effectiveness of the
Registration Statement, except to the extent that any such short sale is
fully covered by shares of Common Stock of the Company other than the
Shares.
5.3 The Purchaser understands that nothing in the Memorandum,
this Agreement or any other materials presented to the Purchaser in
connection with the purchase and sale of the Shares constitutes legal, tax
or investment advice and that no independent legal counsel has reviewed
these documents and materials on the Purchaser's behalf. The Purchaser has
consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its
purchase of the Shares.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. Notwithstanding any investigation made by any party to this
Agreement, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the
securities delivered pursuant hereto shall survive the execution of this
Agreement, the delivery to the Purchaser of the Shares being purchased and
the payment therefor.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligation to complete the sale and issuance of the Shares
and deliver the Shares to the Purchaser shall be subject to the following
conditions to the extent not waived by the Company:
7.1 RECEIPT OF PAYMENT. The Escrow Agent (as defined in that
certain Escrow Agreement of even date herewith) shall have received
payment, by check or wire transfer of immediately available funds, in the
full amount of the purchase price for the number of Shares being purchased
by the Purchaser at the Closing as set forth in Section 2.1.
7.2 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
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CUSIP No. 00023282E1 Page 18 of 32 Pages
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
The Purchaser's obligation to accept delivery of the Shares and to pay for
the Shares shall be subject to the following conditions to the extent not
waived by such Purchaser.
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Company in Section 4 hereof shall be true and
correct when made. At the Closing, the President of the Company shall
deliver a certificate certifying that the representations and warranties
made by the Company in Section 4 are true and correct as of the date of the
Closing.
8.2 LEGAL OPINION. Purchasers shall have received from Cooley
Godward LLP, counsel to the Company, an opinion letter addressed to the
Purchasers, dated as of the Closing Date, in the form attached hereto as
Exhibit B.
8.3 NO GENERAL SOLICITATION; BLUE SKY. The Company shall have
received such assurances as it may reasonably request from BT Alex. Brown
Incorporated (the "Placement Agent") that the Shares were not offered or
sold by any form of general solicitation or advertising and a list from the
Placement Agent of states where Shares are being sold.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE
WITH THE SECURITIES ACT.
9.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is
obligated to do the following:
(a) As soon as practicable following the Closing and in any
event no later than ninety (90) days following the Closing, the Company
shall prepare and file with the SEC one or more registration statements in
order to register with the SEC the resale by the Purchasers, from time to
time, of the Shares through Nasdaq or the facilities of any national
securities exchange on which the Company's Common Stock is then traded, or
in privately negotiated transactions (a "Registration Statement"). The
Company shall use its best efforts to cause such Registration Statement to
be declared effective as soon thereafter as reasonably possible.
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CUSIP No. 00023282E1 Page 19 of 32 Pages
(b) The Company shall prepare and file with the SEC (i) such
amendments and supplements to the Registration Statement and the prospectus
used in connection therewith, (ii) such SEC Documents and (iii) such other
filings required by the SEC, in each case as may be necessary to keep the
Registration Statement continuously effective and not misleading until the
earliest of (A) the second anniversary date of the Closing, (B) such date
as all of the Shares held by all of the Purchasers have been resold or (C)
such time as all of the Shares held by the Purchasers can be sold within a
given three-month Period pursuant to Rule 144 under the Securities Act.
Notwithstanding the foregoing, if, at any time following the effectiveness
of the Registration Statement, the Company shall have determined that the
Company may be required to disclose any material corporate development, the
Company may suspend the effectiveness of the Registration Statement until
such time as an amendment to the Registration Statement has been filed by
the Company and declared effective by the SEC or until such time as the
Company has filed an appropriate report with the SEC pursuant to the
Exchange Act, which suspension shall endure for such period as deemed
necessary by the Company upon advice of counsel (a "Suspension Period"), by
giving notice to the Purchasers. The Company will use its best efforts to
minimize the length of any Suspension Period. The Purchaser agrees that,
upon receipt of any notice from the Company of a Suspension Period, the
Purchaser will not sell any Shares pursuant to the Registration Statement
until (i) the Purchaser is advised in writing by the Company that the use
of the applicable prospectus may be resumed, (ii) the Purchaser has
received copies of any additional or supplemental or amended prospectus, if
applicable, and (iii) the Purchaser has received copies of any additional
or supplemental filings which are incorporated or deemed to be incorporated
by reference in such prospectus.
(c) in order to facilitate the public sale or other disposition
of all or any of the shares by the Purchaser, the Company shall furnish to
the Purchaser with respect to the Shares registered under the Registration
Statement such number of copies of prospectuses, prospectus supplements and
preliminary prospectuses as the Purchaser reasonably requests in conformity
with the requirements of the Securities Act.
(d) The Company shall file any documents required of the Company
for normal blue sky clearance in states specified in writing by the
Purchaser; provided, however, that the Company shall not be required to
qualify to do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented.
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CUSIP No. 00023282E1 Page 20 of 32 Pages
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers except as referred to in Section 12.9 below, the Company shall
bear all expenses (exclusive of any brokerage fees, underwriting discounts
and commissions) in correction with the procedures in paragraphs (a)
through (d) of this Section 9.1 and if requested by holders of at least a
majority of the Shares, the fees and expenses, if any, of one counsel to
the Selling Stockholders (as defined in Section 9.4) in an amount not
exceeding $5,000.
(f) With a view to making available to the Purchasers the
benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and
any other rule or regulation of the SEC that may at any time permit a
Purchaser to sell Shares to the public without registration or pursuant to
registration, the Company covenants and agrees to: (i) make and keep
public information available, as those terms are understood and defined in
Rule 144, until the earlier of (A) the second anniversary of the Closing
Date or (B) such date as all of the Shares shall have been resold; (ii)
file with the SEC in a timely manner all reports and other documents upon
request, as long as the Purchaser owns any Shares, (A) a written statement
by the Company that it has complied with the reporting requirements of the
Exchange Act, (B) a copy of the most recent annual or quarterly report of
the Company, and (C) such other information as may be reasonably requested
in order to avail any Purchaser of any rule or regulation of the SEC that
permits the selling of any such Shares without registration under the
Securities Act.
9.2 TRANSFER OF SECURITIES AFTER REGISTRATION. The Purchaser
agrees that it will not effect any disposition of the Shares that would
constitute a sale within the meaning of the Securities Act, except:
(a) pursuant to the Registration Statement, in which case the
Purchaser shall submit the certificates evidencing the Shares to the
Company's transfer agent, accompanied by a separate "Purchaser's
Certificate" (i) in the form of Appendix I attached hereto, (ii) executed
by such Purchaser or by an officer of, or other authorized person
designated by, such Purchaser, and to the effect that (A) the Shares have
been sold in accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been satisfied; or
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CUSIP No. 00023282E1 Page 21 of 32 Pages
(b) the Purchaser shall have notified the Company of the proposed
disposition and shall have shed the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and if reasonably
requested by the Company, the Purchaser shall have furnished the Company with
an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such Shares under the Securities
Act. It is agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
9.3 LEGENDS. Each certificate representing Shares shall (unless
otherwise permitted by the provisions of the Agreement) be stamped or
otherwise imprinted with a legend substantially similar to the following (in
addition to any Legend required under applicable state securities laws or as
provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL OR BASED ON OTHER WRITTEN EVIDENCE IN THE FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER PLEDGE OR HYPOTHECATION IS IN COMPLIANCE
THEREWITH.
9.4 INDEMNIFICATION. As used in this Section 9.3 the following
terms shall have the following respective meanings:
(a) "Selling Stockholder" shall mean the Purchaser and any
transferee of the Purchaser who is entitled to resell Shares pursuant to
the Registration Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 9.1; and
(c) "Untrue Statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in
the Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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CUSIP No. 00023282E1 Page 22 of 32 Pages
The Company agrees to indemnify and hold harmless each Selling
Stockholder from and t any losses, claims, damages or liabilities to which
such Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon,
any failure to comply with the covenants and agreements contained in
Section 9.1 or 9.2 hereof, or any Untrue Statement on or after the
effective date of the Registration Statement, or on or after the date of
any prospectus or prospectus supplement or the date of any sale by
Purchaser thereunder, or arise out of any failure by the Company to fulfill
any undertaking included in the Registration Statement and the Company will
reimburse such Selling Stockholder for any reasonable legal or other
expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however, that the
Company shall not be liable to such Selling Stockholder in any such case to
the extent that such loss, claim, damage or liability arises out of, or is
based upon an Untrue Statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in
preparation of the Registration Statement, or the failure of such Selling
Stockholder to comply with the covenants and agreements contained in
Section 9.1 or 9.2 hereof respecting sale of the Shares or any statement or
omission in any Prospectus that is corrected in any subsequent prospectus
that was delivered to the Selling Stockholder prior to the pertinent sale
or sales by the Selling Stockholder.
The Purchaser agrees to indemnify and hold harmless the Company
(and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against
any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, any failure to comply with the covenants and agreements
contained in Section 9.1 or 9.2 hereof respecting sale of the Shares, or
any Untrue Statement contained in the Registration Statement on or after
the effective date thereof, or in any prospectus supplement as of its issue
date or date of any sale by the Purchaser thereunder, if such Untrue
Statement was trade in reliance upon and in conformity with written
information furnished by or on behalf of the Purchaser specifically for use
in preparation of the Region Statement, and the Purchaser will reimburse
the Company (or such officer, director or controlling person), as the case
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CUSIP No. 00023282E1 Page 23 of 32 Pages
may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim; provided that in no event shall any indemnity by the Purchaser
under this Section 9.3 exceed the gross proceeds received by the Purchaser
from the sale of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 9.3, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein,
and, to the extent it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by
such indemnified person in connection with the defense thereof; provided,
however, that if there exists or shall exist a conflict of interest that
would make it inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified person and
such indemnifying person or any affiliate or associate thereof, the indeed
person shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, however, that no indemnifying person shall
be responsible for fees and expenses of more than one separate counsel for
all indemnified parties.
9.5 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 4, Section 5 or this Section 9 upon the
transferability of the Shares shall cease and terminate as to any
particular number of the Shares when such Shares shall have been sold or
otherwise disposed of in accordance with the intended method of disposition
set forth in the Registration Statement covering such Shares or at such
time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
<PAGE>
CUSIP No. 00023282E1 Page 24 of 32 Pages
9.6 INFORMATION AVAILABLE. So long as the Registration
Statement is effective covering the resale of Shares owned by the
Purchaser, the Company will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of
the Company's Annual Report to Stockholders, within 120 days after the end
of each fiscal year of the Company), one copy of (i) its Annual Report to
Stockholders (which Annual Report shall contain financial statements
audited in accordance with generally accepted auditing standards certified
by a national firm of certified public accountants); (ii) its Annual Report
on Form 10-K; (iii) its quarterly reports on Form 10-Q (the foregoing, in
each case, excluding exhibits); (iv) its Proxy Statement; and (v) its
current reports on Form 9-K, if any;
(b) upon the request of any Purchaser, all exhibits excluded by
the parenthetical in subparagraph (a)(iii) of this Section 9.5, in the form
generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate
number of copies of the prospectuses and supplements to supply to any other
party requiring such prospectuses.
9.7 CHANGES IN PURCHASER INFORMATION. The Purchaser agrees to
promptly notify the Company of any changes in the information set forth in
the Registration Statement regarding the Purchaser or its plan of
distribution set forth in such Registration Statement.
SECTION 10. MARKET STAND OFF. The Purchaser hereby agrees, upon
request of the Company and its underwriters, that it shall not sell or
otherwise transfer or dispose of any Common Stock (or other securities) of
the Company held by it (other than those included in the registration) for
a period specified by the representative of the underwriters of Common
Stock (or other securities) of the Company not to exceed 90 days following
the effective date of a registration statement of the Company filed
<PAGE>
CUSIP No. 00023282E1 Page 25 of 32 Pages
under the Securities Act, provided that all executive officers and
directors of the Company and enter into similar agreements. The Purchaser
agrees to execute and deliver such other agreements as may be reasonably
requested by the Company or the Underwriter which are consistent with the
foregoing or which am necessary to give effect thereto. The obligations
described in this Section 10 shall not apply to a registration relating
solely to employee benefit plans on Form S-1 or Form S-8 or similar forms
that may be promulgated in the future, or a registration relating solely to
a SEC Rule 145 transaction on Form S-4 or ar forms that may be promulgated
in the future. The Company may impose stop-transfer instructions with
respect to the shares of Common Stock (or other securities) subject to the
foregoing action until the end of said 90 day period.
SECTION 11. BROKER'S FEE. The Company and the Purchaser hereby
represent that, except for amounts to be paid to the Placement Agent. by
the Company as described in Section 12.8 hereof, there are no brokers or
finders entitled to compensation in connection with the sale of the Shares,
and shall indemnity each other for any such fees for which they are
responsible.
SECTION 12. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by confirmed
facsimile or mailed by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, and shall
be deemed given when so sent in the case of facsimile transmission, or when
so received in the case of mail or courier, and addressed as follows:
(a) if to the Company, to:
Cytel Corporation
3525 John Hopkins Court
San Diego, CA 92121
Attention: President and Chief
Executive Officer
with a copy so mailed to:
Cooley Godward LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Attention: Frederick T. Muto, Esq.
or to such other person at such other place as the Company shall designate
to the Purchasers in writing; and
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CUSIP No. 00023282E1 Page 26 of 32 Pages
(b) if to the Purchaser, at the address as set forth at the end
of this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
SECTION 13. MISCELLANEOUS.
13.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, terminated, modified
or amended except upon the written consent of the Company and the
Purchaser.
13.2 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
13.3 SEVERABILITY. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied
to contracts entered into and performed entirely in California by
California residents, without regard to conflicts of law principles.
13.5 COUNTERPARTS. Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
13.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
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CUSIP No. 00023282E1 Page 27 of 32 Pages
13.7 ENTIRE AGREEMENT. This Agreement and other documents
delivered pursuant hereto, including the exhibits, constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof
13.8 PAYMENT OF FEES AND EXPENSES. Each of the Company and the
Purchaser shall bear its own expenses and legal fees incurred on its behalf
with respect to this Agreement and the transactions contemplated hereby
(the "Offering"); provided, that the Company shall reimburse the Placement
Agent for certain fees and expenses incurred by the Placement Agent in
connection with the Offering as described in the Memorandum. Purchasers
acknowledge that the Placement Agent will receive a commission in the
amount described in the Memorandum. If any action at law or in equity is
necessary to enforce or interpret the terms of Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
<PAGE>
CUSIP No. 00023282E1 Page 28 of 32 Pages
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
CYTEL CORPORATION
By:_______________________________
Name:______________________________
Title:_____________________________
PURCHASER
International
Biotechnology
Purchaser Name: Trust PLC
By: /s/ Jeremy L. Curnock Cook
Name: Jeremy L. Curnock Cook
Title: Director
Address: Five Arrows House
St. Swithin's Lane
London EC4N 8NR U.K.
Facsimile: (171) 623-6261
<PAGE>
CUSIP No. 00023282E1 Page 29 of 32 Pages
EXHIBIT A
SCHEDULE OF EXCEPTIONS
None.
<PAGE>
CUSIP No. 00023282E1 Page 30 of 32 Pages
EXHIBIT B
FORM OF OPINION OF COUNSEL
1. The Company has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware. The Company is in
good standing in the State of California. The Company has the requisite
corporate power to own or lease its property and assets and to conduct its
business as currently conducted as described in the Memorandum.
2. The Purchase Agreement has been duly authorized by all
necessary corporate action on the part of the Company and has been duly
executed and delivered on behalf of the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights, (ii) as limited by
equitable principles generally, whether such enforceability is considered in
a proceeding in equity or at law, and (iii) as to those provisions of Section
9.3 relating to indemnity or contribution.
3. The Company's authorized capital stock consists of (a) fifty
million (50,000,000) shares of Common Stock, $.01 par value, of which [twenty
seven million two hundred fourteen eight hundred eighty six (27,214,886)]
shares are issued and outstanding, and (b) ten million (10,000,000) shares of
Preferred Stock, $.01 par value, of five hundred thousand (500,000) shares
are designated Series A Junior Participating Preferred Stock, no shares of
which are issued and outstanding.
4. The Shares have been duly authorized and when issued, deliv-
ered and paid for in accordance with the terms of the Agreement, will be
validly issued, fully paid and nonassessable.
5. The execution and delivery of the Agreement and the consum-
mation of the sale of the Shares by the Company as contemplated therein do
not violate any provisions of the Company's Certificate of Incorporation or
Bylaws, and do not violate or contravene (a) any law applicable to the
Company and known to us or (b) any order, writ, judgment, injunction,
decree, determination or award applicable to the Company and known to us.
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CUSIP No. 00023282E1 Page 31 of 32 Pages
6. Except as set forth in the Memorandum, to our knowledge there
is no action proceeding or investigation pending or threatened in writing
against the Company which could reasonably be anticipated to result, either
individually or in the aggregate, in any material adverse change in the
assets, financial condition or operations of the Company.
7. The offer and sale of the Shares by the Company to the
Purchasers is exempt from the registration requirements of the Securities Act
of 1933, as amended.
8. All consents, approvals, authorizations, or orders of, and
filings, registrations and qualifications with any regulatory authority or
governmental body in the United States required for the issuance by the
Company of the Shares as contemplated by the Agreement, have been made or
obtained (except such as may be required under state securities and blue sky
laws for which we express no opinion).
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CUSIP No. 00023282E1 Page 32 of 32 Pages
APPENDIX I
PURCHASER'S CERTIFICATE OF RESALE OF THE SHARES
The undersigned, an officer of, or other person duly authorized by
______________________ hereby certifies that he/she [said institution] is the
Purchaser of the Shares evidenced by the attached stock certificate(s) and as
such, sold such Shares on _____________________________________ in accordance
with the registration statement number ______________________________ and the
requirement of delivering a current prospectus and current annual, quarterly
and reports (Forms 10-K, 10-Q, and 8-K) by the Company has been complied with
in connection with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):
__________________________________________________________________
Name of Individual representing Purchaser (if an Institution):
__________________________________________________________________
Title of Individual representing Purchaser (if an Institution):
__________________________________________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
__________________________________________________________________
