<PAGE>
As filed with the Securities and Exchange Commission on April 12, 2000
Registration No. 333-33872
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------
CELL THERAPEUTICS, INC.
(Exact name of Registrant as specified in its charter)
---------------
<TABLE>
<S> <C> <C>
Washington 2384 91-1533912
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
201 Elliott Avenue West
Seattle, Washington 98119
(206) 282-7100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
James A. Bianco
President and Chief Executive Officer
Cell Therapeutics, Inc.
201 Elliott Avenue West
Seattle, Washington 98119
(206) 282-7100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copy to:
Michael J. Kennedy, Esq.
Michael S. Dorf, Esq.
Torrey J. Miller, Esq.
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
---------------
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
<TABLE>
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Title of each class of maximum maximum Amount of
securities to be Amount to be offering price aggregate registration
registered registered(/1/) per share offering price fee
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value per share....... 3,503,334(/2/) $21.00 $73,570,014 $19,423(/3/)
- -----------------------------------------------------------------------------------
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</TABLE>
(1) In accordance with Rules 416 and 457 under the Securities Act, this
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may be issuable in connection with the exercise
of the warrants described in footnote (2) below, to prevent dilution
resulting from stock splits, stock dividends and similar transactions.
(2) A total of 170,000 shares of Registrant's Common Stock are being registered
hereunder for resale upon exercise of warrants to purchase 170,000 shares
of Common Stock at an exercise price of $13.20 per share.
(3) Previously paid with the initial filing on April 3, 2000.
---------------
CTI hereby amends this Registration Statement on such date or dates as may
be necessary to delay its effective date until CTI shall file a further
amendment that specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, or until the Registration Statement shall become effective on such
date as the SEC, acting pursuant to said Section 8(a), may determine.
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<PAGE>
The purpose of this Amendment No. 1 is solely to file certain exhibits to
the Registration Statement, as set forth below in Item 16 of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by CTI in connection with the
sale of common stock being registered. All amounts are estimates except the SEC
registration fee.
<TABLE>
<S> <C>
SEC Registration Fee............................................... $ 19,423
Legal Fees and Expenses............................................ 50,000
Accounting Fees and Expenses....................................... 10,000
Printing Fees...................................................... 18,000
Transfer Agent Fees................................................ 2,500
Miscellaneous...................................................... 1,000
--------
Total............................................................ $100,923
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Article IX of CTI's Restated Bylaws provides for
indemnification of CTI's directors, officers, employees and agents to the
maximum extent permitted by Washington law. The directors and officers of CTI
also may be indemnified against liability they may incur for serving in such
capacity pursuant to a liability insurance policy maintained by CTI for such
purpose.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary
damages for acts or omissions as a director, except in certain circumstances
involving intentional misconduct, knowing violations of law or illegal
corporate losses or distributions, or any transaction from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Article VI of the Registrant's Restated
Articles of Incorporation (Exhibit 4.1 hereto) contains provisions
implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Registrant and its shareholders.
CTI has entered into an indemnification agreement with each of its executive
officers and directors in which CTI agrees to hold harmless and indemnify the
officer or director to the fullest extent permitted by Washington law. CTI
agrees to indemnify the officer or director against any and all losses, claims,
damages, liabilities or expenses incurred in connection with any actual,
pending or threatened action, suit, claim or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, in
which the officer or director is, was or becomes involved by reason of the fact
that the officer or director is or was a director, officer, employee, trustee
or agent of the Registrant or any related company, partnership or enterprise,
including service with respect to an employee benefit plan, whether the basis
of such proceeding is alleged action (or inaction) by the officer or director
in an official capacity and any action, suit, claim or proceeding instructed by
or at the direction of the officer or director unless such action, suit, claim
or proceeding is or was authorized by CTI's Board of Directors. No indemnity
pursuant to the indemnification agreements shall be provided by CTI on account
of any suit in which a final, unappealable judgment is rendered against the
officer or director for an accounting of profits made from the purchase or sale
by the officer or director of securities of CTI in violation of the provisions
of Section 16(b) of the Securities Exchange Act of 1934, or for damages that
have been paid directly to the officer or director by an insurance carrier
under a policy of directors' and officers' liability insurance maintained by
CTI.
II-1
<PAGE>
CTI has entered into Registration Rights Agreements with the selling
holders. Such agreements provide for indemnification by such selling holders of
the Company and its officers and directors, and by the Company of such selling
holders, for certain liabilities arising under the Securities Act or otherwise.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
4.1 Securities Purchase Agreement dated as of Febuary 15, 2000 between Cell
Therapeutics, Inc. and the Purchasers named therein.
4.2 Form of Registration Rights Agreement dated as of Febuary 15, 2000
between Cell Therapeutics, Inc. and the Investors named therein.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1* Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in the Opinion of
Wilson Sonsini Goodrich & Rosati filed as Exhibit 5.1 hereto)
24.1* Power of Attorney (see page II-3)
</TABLE>
- --------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the registration statement, or the most recent post-effective
amendment thereof, which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement; and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and therefore is
unenforceable. In the event that a claim for indemnification against such
liabilities, other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act, and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act, that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Seattle, State of Washington, on this 12th day
of April, 2000.
CELL THERAPEUTICS, INC.
/s/ James A. Bianco, M.D.
By __________________________________
James A. Bianco, M.D.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
amendment to the registration statement has been signed below by the following
persons on behalf of CTI and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James A. Bianco, M.D. President, Chief Executive April 12, 2000
____________________________________ Officer and Director
James A. Bianco, M.D. (Principal Executive
Officer)
/s/ Louis A. Bianco* Executive Vice President, April 12, 2000
____________________________________ Finance and Administration
Louis A. Bianco (Principal Financial
and Accounting Officer)
/s/ Max E. Link, Ph.D.* Chairman of the Board and April 12, 2000
____________________________________ Director
Max E. Link, Ph.D.
/s/ Jack W. Singer, M.D.* Director April 12, 2000
____________________________________
Jack W. Singer, M.D.
/s/ Jack L. Bowman* Director April 12, 2000
____________________________________
Jack L. Bowman
/s/ Jeremy L. Curnok Cook* Director April 12, 2000
____________________________________
Jeremy L. Curnock Cook
/s/ Wilfred E. Jaeger, M.D.* Director April 12, 2000
____________________________________
Wilfred E. Jaeger, M.D.
/s/ Mary O'Neil Mundinger* Director April 12, 2000
____________________________________
Mary O'Neil Mundinger
/s/ Phillip M. Nudelman, Ph.D.* Director April 12, 2000
____________________________________
Phillip M. Nudelman, Ph.D.
</TABLE>
/s/ James A. Bianco, M.D.
*By ______________________
James A. Bianco, M.D.
Attorney-in-fact
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------- -------------
<C> <S>
4.1 Securities Purchase Agreement dated as of Febuary 15, 2000 between
Cell Therapeutics, Inc. and the Purchasers named therein.
4.2 Form of Registration Rights Agreement dated as of Febuary 15, 2000
between Cell Therapeutics, Inc. and the Investors named therein.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1* Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in the Opinion
of WSGR filed as Exhibit 5.1)
24.1* Power of Attorney (see page II-3)
</TABLE>
- --------
* Previously filed.
<PAGE>
EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (the "Agreement") is entered into as
of February 15, 2000 (the "Execution Date"), between Cell Therapeutics, Inc., a
Washington corporation (the "Company"), and the investors set forth on the
signature page hereto (each an "Investor" and collectively the "Investors").
WHEREAS:
The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 under Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 Act");
The Company desires to issue and sell to each Investor and each
Investor desires to purchase the number of shares of common stock, no par value
per share (the "Common Stock") set forth opposite such Investor's name on
Exhibit A attached hereto, with each share having a purchase price of Twelve
Dollars ($12.00); and
Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
providing for the registration of the Shares (as herein defined).
NOW THEREFORE, the Company and Investor hereby agree as follows:
I. PURCHASE AND SALE OF SECURITIES.
(a) Sale of Common Stock. Subject to the terms and conditions hereof,
--------------------
the Company shall issue and sell to each Investor and each Investor agrees to
purchase from the Company, the number of shares of Common Stock set forth
opposite such Investor's name on Exhibit A (collectively, together with any
Common Stock issued in replacement thereof or as a dividend thereon or otherwise
with respect thereto in accordance with the terms thereof, the "Shares") each
with a purchase price of Twelve Dollars ($12.00) per share (the "Purchase
Price"). One (1) Share will be issued to each Investor for each $12.00 provided
by the Investor to the Company.
(b) Closing. Subject to the terms set forth in this Agreement, the
-------
issuance, sale and purchase of the Common Stock shall be consummated in a single
closing (the "Closing").
(c) Payment. At the Closing each Investor shall pay the Purchase Price
-------
for the Shares being acquired by it by wire transfer to "State Street Bank &
Trust Company, N.A., "Escrow Agent," F/B/O Cell Therapeutics, Inc.", in
accordance with the Company's written wiring instructions, against delivery of
the appropriate amount of duly executed stock certificates and the items
required by Section 7 for the same and the Company shall deliver such Shares
against delivery of such Purchase Price.
Page 1 of 15
<PAGE>
(d) Closing Date. Subject to the satisfaction of the conditions set
------------
forth in Sections 6 and 7 below, the date and time of the issuance, sale and
purchase of Shares pursuant to this Agreement shall be February 22, 2000 or such
other date as the Company and the Investor may mutually agree. Each Closing
shall occur at 9:30 p.m. local time, at the offices of the Company. The date of
a Closing hereunder is hereinafter referred to as a "Closing Date."
II. INVESTOR'S REPRESENTATIONS AND WARRANTIES. Each Investor, severally, and not
jointly, represents and warrants to the Company that, as of the date hereof:
(a) Investment Purpose. Such Investor is purchasing the Shares for its
------------------
own account as principal for investment only and not with a present view towards
the public sale or distribution thereof, except pursuant to sales registered or
exempted from registration under the 1933 Act. By making this representation,
such Investor does not represent that it will hold such Shares for any period of
time.
(b) Accredited Investor Status. Such Investor is an "accredited
--------------------------
investor" as that term is defined in Rule 501(a) of Regulation D and has such
business and financial experience as is required to give it the capacity to
protect its own interests in connection with the purchase of the Shares. The
Company has completed the Investor Questionnaire (the "Investor Questionnaire")
attached hereto as Exhibit C, and the information contained therein is accurate.
(c) Prior Investment Experience. The Investor hereby acknowledges and
---------------------------
represents that (i) the Investor has prior investment experience, including
investment in Shares which are non-listed, unregistered and/or not traded on the
Nasdaq National or SmallCap Market, a national stock exchange nor on the NASD's
automated quotation system for actively traded stocks, or the Investor has
employed the services of an investment advisor, attorney and/or accountant to
read all of the documents furnished or made available by the Company to the
Investor and to all other prospective investors in the Shares and to evaluate
the merits and risks of such an investment on the Investor's behalf; (ii) the
Investor recognizes the highly speculative nature of this investment; and (iii)
the Investor is able to bear the economic risk which the Investor hereby
assumes. The Investor hereby represents that the Investor, either by reason of
the Investor's business or financial experience or the business or financial
experience of the Investor's professional advisors, has the capacity to protect
the Investor's own interests in connection with the transaction contemplated
hereby.
(d) Reliance on Exemptions. Such Investor understands that the Shares
----------------------
are being offered and sold to it in reliance upon Rule 506 of Regulation D of
the 1933 Act as a specific exemption from the registration requirements of
United States federal and state securities laws and that the Company is relying
upon the truth and accuracy of, and the Investor's compliance with, the
representations, warranties, agreements, covenants, acknowledgments and
understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Shares.
Page 2 of 15
<PAGE>
(e) Acknowledgement of Risks. The Investor recognizes that the purchase
------------------------
of Shares involves a high degree of risk including, but not limited to, the
following: (i) the Company remains a development stage business with limited
operating history and requires substantial funds in addition to the proceeds of
the Offering; (ii) an investment in the Company is highly speculative, and only
investors who can afford the loss of their entire investment should consider
investing in the Company and the Shares; (iii) the Investor may not be able to
liquidate his/its investment; (iv) transferability of the Common Stock is
extremely limited; (v) in the event of a disposition of the Common Stock, the
Investor could sustain the loss of his/its entire investment and (vi) the
Company has not paid any dividends on its Common Stock since inception and does
not anticipate the payment of dividends in the foreseeable future.
(f) Information. Such Investor and its advisors, if any, have been
-----------
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Securities
which have been requested by such Investor or its advisors. Such Investor and
its advisors, if any, have been afforded the opportunity to ask questions of the
Company and have received what such Investor believes to be satisfactory answers
to any such inquiries. Neither such inquiries nor any other due diligence
investigation conducted by such Investor or any of its advisors or
representatives shall modify, amend or affect such Investor's right to rely on
the Company's representations and warranties contained in Section 3 below. Such
Investor understands that its investment in the Shares involves a significant
degree of risk.
(g) Governmental Review. Such Investor understands that no United
-------------------
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Shares.
(h) Transfer or Resale. Such Investor understands that (i) except as
------------------
provided in the Registration Rights Agreement, the Shares have not been and are
not being registered under the 1933 Act or any applicable state securities laws,
and may not be transferred unless (1) subsequently included in an effective
registration statement thereunder, (2) the Investor shall have delivered to the
Company an opinion of counsel (which opinion shall be reasonably satisfactory to
the Company) to the effect that the Shares to be sold or transferred may be sold
or transferred pursuant to an exemption from such registration or (3) sold
pursuant to Rule 144 promulgated under the 1933 Act (or a successor rule) ("Rule
144")), (ii) any sale of such Shares made in reliance on Rule 144 may be made
only in accordance with the terms of said Rule and further, if Rule 144 is not
applicable, any resale of such Shares under circumstances in which the seller
(or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the 1933 Act) may require compliance with some other
exemption under the 1933 Act or the rules and regulations of the "SEC"
thereunder, and (iii) neither the Company nor any other person is under any
obligation to register such Shares under the 1933 Act or any state securities
laws or to comply with the terms and conditions of any exemption thereunder (in
each case, other than pursuant to the Registration Rights Agreement).
(i) Legends. Such Investor understands that until such time as the
-------
Shares have been registered under the 1933 Act as contemplated by the
Registration Rights Agreement, the Shares
Page 3 of 15
<PAGE>
may bear a restrictive legend in substantially the following form (and a stop-
transfer order may be placed against transfer of the certificates for such
Shares):
(i) The following legend under the 1933 Act:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED
UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED";
(ii) The Shares shall not contain the legend set forth above at any
time while a registration statement filed pursuant to the Registration
Rights Agreement is effective under the 1933 Act or, in the event there is
not such an effective registration statement, at such time, in the opinion
of counsel to the Company, such legend is not required under applicable
requirements of the 1933 Act (including judicial interpretations and
pronouncements issued by the staff of the SEC). The Company agrees that, in
the event any Shares are issued with a legend in accordance with this
Section 2(i)(2), it will, within three (3) trading days after request
therefor by such Investor, provide such Investor with a certificate or
certificates representing such Shares, free from such legend at such time
as such legend would not have been required under this Section 2(h)(2) had
such issuance occurred on the date of such request. The Company may not
make any notation on its records or give instructions to any transfer agent
of the Company which enlarge the restrictions of transfer set forth in this
Section.
(i) Authorization; Enforcement. Such Investor represents and warrants
--------------------------
to the Company that (i) such Investor has all requisite legal and corporate or
other power and capacity and has taken all requisite corporate or other action
to execute and deliver this Agreement, to purchase the Shares to be purchased by
it and to carry out and perform all of its obligations under this Agreement, and
(ii) this Agreement constitutes the legal, valid and binding obligation of the
Investor, enforceable in accordance with its terms, except (1) as limited by
applicable bankruptcy, insolvency, reorganization, or similar laws relating to
or affecting the enforcement of creditors' rights generally and (2) as limited
by equitable principles generally and (iii) to the extent that indemnification
provisions in the Registration Rights Agreement may be limited by applicable
federal or state securities laws.
(j) No Legal, Tax or Investment Advice. Such Investor understands that
----------------------------------
nothing in this Agreement or any other materials presented to the Investor in
connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice. Such Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or
Page 4 of 15
<PAGE>
appropriate in connection with this Agreement and all exhibits hereto and the
transactions contemplated herein and therein.
(k) Residency. Such Investor is a company organized under the laws of the
---------
jurisdiction set forth opposite such Investor's name on it's the signature page.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
---------------------------------------------
warrants to the Investor that, except as set forth in the Schedule of Exceptions
attached hereto as Exhibit D, as of the date hereof:
(a) Organization and Qualification. The Company is duly organized,
------------------------------
validly existing and in good standing under the laws of Washington, with
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as presently conducted and/or proposed to be
conducted. The Company and each of its subsidiaries is qualified to do business
as a foreign corporation in each jurisdiction in which the ownership of its
property or the nature of its business requires such qualification, except where
failure to so qualify would not have an Adverse Effect. For purposes of this
Agreement, "Adverse Effect" means with respect to the Company and its
subsidiaries, taken as a whole, any event, change or effect that, when taken
individually or together with all other adverse changes and effects, is or is
reasonably likely to be materially adverse to the condition (financial or
otherwise), properties, assets, liabilities, business, operations or results of
operations of the Company and its subsidiaries taken as a whole or impair the
ability of the Company to perform fully on a timely basis its obligations under
the Transaction Documents. "Transaction Documents" means, collectively, this
Agreement, the Registration Rights Agreement, and the Investor Questionnaire.
(b) Authorization; Enforcement. The Company has all requisite legal and
--------------------------
corporate power and has taken all requisite corporate action to execute and
deliver this Agreement and the Registration Rights Agreement to sell and issue
the Shares and to carry out and perform all of its obligations under the
Transaction Documents. All corporate action on the part of the Company, its
directors and stockholders necessary for the authorization, execution, delivery
and performance of this Agreement and the Registration Rights Agreement by the
Company, and the authorization, sale, issuance and delivery of the Shares and
the performance of the Company's obligations under the Transaction Documents has
been taken. Each of the Transaction Documents constitutes the legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) as limited by equitable principles generally
and (iii) to the extent that indemnification provisions in the Registration
Rights Agreement may be limited by applicable federal or state securities laws.
(c) Capitalization. [TO BE PROVIDED BY CTIC] The authorized capital
--------------
stock of the Company consists of 100,000,000 shares of common stock, no par
value per share, of which there were 17,758,838 shares issued and outstanding as
of January 31, 2000, and 10,000,000 shares of Preferred Stock, $0.01 par value
per share, 10,000 of which shares have been designated as Series A Preferred
Stock and are issued and outstanding. All outstanding shares of
Page 5 of 15
<PAGE>
Common Stock and Preferred Stock are duly authorized, validly issued, fully paid
and nonassessable, free of any liens or encumbrances and are not subject to
preemptive rights. As of January 31, 2000, the Company had reserved 3,836,715
shares of Common Stock for issuance to employees, directors and consultants
pursuant to the 1994 Amended and Restated CTI Stock Option Plan, of which
233,752 shares have been issued pursuant to option exercises, and 2,994,318
shares of Common Stock are subject to outstanding, unexercised options. As of
September 17, 1999, the Company had reserved 285,714 shares of Common Stock for
issuance to employees pursuant to the 1996 CTI Employee Stock Purchase Plan
(together with the Stock Option Plan, the ("CTI Plans"), of which 151,780 shares
have been issued to employees. Other than as set forth in the Schedule of
Exceptions, the CTI Plans, the SEC Documents or as contemplated in this
Agreement, there are no other options, warrants, calls, rights, commitments or
agreements of any character to which the Company is a party or by which either
the Company is bound or obligating the Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or obligating the
Company to grant, extend or enter into any such option, warrant, call, right,
commitment or agreement.
(d) Issuance of Shares. The Shares are duly authorized and, upon
------------------
issuance in accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable, and free from all taxes, liens and charges with
respect to the issue thereof and shall not be subject to preemptive rights or
other similar rights of stockholders of the Company. Based in part upon the
representations of the Investor in this Agreement, the offer, sale and issuance
of the Common Stock will be made in compliance with all applicable federal and
state securities laws.
(e) No Conflicts. The execution, delivery and performance of the
------------
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with or result in a violation of any provision of the Company's Certificate of
Incorporation or Bylaws or (ii) violate or conflict with, or result in a breach
of any provision of, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, acceleration or cancellation of (with or without notice,
lapse of time or both), any indenture, mortgage, lease or other agreement or
instrument, or result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is
bound or affected (in each case except for such conflicts, defaults,
terminations, accelerations, cancellations and violations that are not
reasonably likely to, individually or in the aggregate, have an Adverse Effect).
(f) Accuracy of Reports; Financial Statements. All reports required to
-----------------------------------------
be filed with the SEC by the Company during the twelve (12) month period
preceding the date hereof under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (the "SEC Documents"), have been duly and timely filed,
were in substantial compliance with the requirements of the 1933 Act and
Exchange Act when filed, were complete and correct in all material respects as
of the dates at which the information was furnished, and contained (as of such
dates) no untrue statement of a material fact nor omitted to state a material
fact necessary in order to make the
Page 6 of 15
<PAGE>
statements made therein in light of the circumstances in which made not
misleading. The financial statements of the Company included in the SEC
Documents (the "Financial Statements") comply 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 ("GAAP") consistently
applied and fairly present the consolidated financial position of the Company
and any subsidiaries at the dates thereof and the consolidated results of
operations and consolidated cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal, recurring year-end adjustments).
Except as set forth in the SEC Documents, the Company does not have any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be set forth on a balance sheet of the Company
or in the notes thereto.
(g) Changes. Since September 30, 1999, there has not been (a) any
-------
incurrence by the Company of any material liability, absolute or contingent, or
(b) any event or condition of any character that has materially and adversely
affected or might materially and adversely affect the business, properties,
prospects or financial condition of the Company (as such business is presently
conducted and as it is proposed to be conducted). There is no material liability
or contingency of the Company that is not disclosed in the SEC Documents.
[SHOULD INCLUDE POLARX ON THE SCHEDULE OF EXCEPTIONS.]
(h) Governmental Consents, etc. No consent, approval or authorization of
--------------------------
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution, delivery
and performance of the Transaction Documents, or the consummation of any other
transaction contemplated hereby and thereby, except such filings as may be
required to be made with the SEC, the National Association of Securities
Dealers, Inc. ("NASD") the Nasdaq National Market (the "NADDAQ"), such filings
as may be required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended ("HSR") and filings with governmental authorities for purposes
of effecting compliance with the securities and blue sky laws in the states in
which Shares are offered and/or sold, which compliance will be effected in
accordance with such laws. The Company has not received any delisting notices,
notice of violation or similar inquiry regarding its eligibility for listing
from the NASDAQ.
(i) Litigation. There is no pending or, to the best of the Company's
----------
knowledge, threatened lawsuit, administrative proceeding, arbitration, labor
dispute or governmental investigation ("Litigation") to which the Company is a
party or by which any material portion of its assets, taken as a whole, may be
bound, nor is the Company aware of any basis therefor, which Litigation, if
adversely determined, would have an Adverse Effect.
(j) Patents and Trademarks. To its knowledge, except as disclosed in the
----------------------
SEC Documents, the Company owns or possesses the right to use to all patents,
trademarks, service marks, tradenames, copyrights, trade secrets, licenses,
information and proprietary rights and processes necessary for its business as
now conducted and as proposed to be conducted, without infringement of any
rights of a third party. Except as is disclosed in the SEC Documents, the
Company has not received any communications alleging that the Company has
violated or, by
Page 7 of 15
<PAGE>
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, tradenames, copyrights, trade secrets or other
proprietary rights or processes of any other person or entity, which violation
would have an Adverse Effect on the Company. Except as disclosed in the SEC
Documents, the Company has not granted (nor has the Company licensed from a
third party) any material rights to or licenses to its patents, trademarks,
service marks, tradenames, copyrights, trade secrets or other proprietary rights
or processes.
(k) Registration Rights. Except for the registration rights granted in
-------------------
connection with the (i) license of PG-Taxol; (ii) the acquisition of PolaRx
BioPharmaceuticals, Inc.; and (iii) the sale of the Series A Preferred Stock,
there are no outstanding obligations of the Company to register the securities
of a third party.
(l) Disclosure. No representation or warranty of the Company contained
----------
in any Transaction Documents or the exhibits attached thereto, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein in light of the
circumstances under which they were made not misleading. The Company confirms
that it has not provided the Investors or their agents or counsel with any
information that constitutes or might constitute material non-public
information. The Company understands and confirms that the Investors shall be
relying on the foregoing representations in effecting transactions in securities
of the Company.
(m) Solvency; No Default. The Company has sufficient funds and cash flow
--------------------
to pay its debts and other liabilities as they become due, and the Company is
not in default with respect to any material debt or liability.
(n) No Default or Violation. Neither the Company nor any subsidiary is in
-----------------------
violation of or default under any provision of (and no event has occurred which
has not been waived which, with notice or lapse of time or both, would result in
a default by the Company or any subsidiary), nor has the Company or any
subsidiary received notice of a claim that it is in default under or that it is
in violation of (a) its Certificate of Incorporation or Bylaws, or (b) any
mortgage, indenture, lease or other agreement or instrument, permit, concession,
franchise or license to which it is a party or by which it is bound or (c) any
federal or state judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company, except with respect to clauses (b) and (c)
above, such violations or defaults as would not have an Adverse Effect.
(o) Eligibility. The Company is eligible and meets the requirements to
-----------
register for resale on Form S-3 under the 1933 Act.
IV. COVENANTS.
(a) Best Efforts. The parties shall use their commercially reasonable
------------
best efforts to satisfy timely each of the conditions described in Section 6 and
Section 7 of this Agreement.
(b) Form D; Blue Sky Laws. The Company agrees to file a Form D with
---------------------
respect to the Shares as required under Regulation D and to provide a copy
thereof to the Investors promptly after such filing. The Company shall qualify
the Shares for sale to the Investors
Page 8 of 15
<PAGE>
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States (or to obtain an exemption from such qualification),
and shall provide evidence of any such action so taken to Investor.
(c) Listing. The Company shall, no later than fourteen (14) business days
-------
after the Closing Date, secure the listing of the Underlying Shares upon the
NASDAQ and each national securities exchange or automated quotation system, if
any, upon which the shares of Common Stock are then listed (subject to official
notice of issuance) and shall maintain, so long as any other shares of Common
Stock shall be so listed, such listing of all such Underlying Shares. The
Company will obtain and maintain the listing and trading of its Common Stock on
the NASDAQ, the Nasdaq SmallCap Market, the New York Stock Exchange, or the
American Stock Exchange as may then be applicable, and will comply in all
material respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the NASD.
(d) Transfer of Shares by Investor.
------------------------------
(i) As set forth in this Section 4(i), each Investor shall have
limited rights to transfer the Shares before they are registered under the
1933 Act or transferable under Rule 144. Once the Shares are registered
under the 1933 Act or transferable under Rule 144, each Investor may
transfer the Shares as permitted by federal and state securities laws.
Prior to such time, each Investor may transfer the Shares solely to (A) an
Affiliate of the Investor (as such term is defined in Rule 405 under the
1933 Act), (B) an entity solely in connection with charitable contributions
by the Investor or (C) an individual or entity solely for estate planning
purposes, provided that written notice is provided to the Company five (5)
business days prior to any such assignment and immediately following such
assignment the further disposition of such Shares by the transferee or
assignee is restricted under the 1933 Act and the transferee or assignee
agrees in writing to be bound by all of the provisions of this Agreement.
All other transfers of the Shares are prohibited unless such Investor has
obtained the Company's prior written consent.
(ii) At least five (5) business days prior to the date it intends to
transfer Shares in a private transaction, an Investor shall deliver to the
Company a written notice (the "Transfer Notice") stating: (A) the
Investor's bona fide intention to sell or otherwise transfer the Shares;
(B) the name and address of each permitted proposed purchaser or other
transferee ("Proposed Transferee"); (C) the quantity of Shares to be
transferred to each Proposed Transferee; and (D) the terms and conditions
of each proposed sale or transfer, including the price. Any such sale or
other transfer shall be consummated within 30 days after the date of the
Transfer Notice. Any such sale or other transfer shall be effected in
accordance with any applicable securities laws and the Proposed Transferee
shall agree in writing that the provisions of this Section 4(e) and the
remaining restrictions and conditions contained in this Agreement shall
continue to apply to the Shares in the hands of such Proposed Transferee.
If the Shares described in the Transfer Notice are not transferred to the
Proposed Transferee within such period, a new Transfer Notice shall be
given to the Company before any Shares held by the Investor may be sold or
otherwise transferred.
Page 9 of 15
<PAGE>
(f) Transactions with Affiliates. The Company agrees that to the extent
----------------------------
it engages in transactions with Affiliates, it will do so upon fair and
reasonable terms, as if the transaction were with an unaffiliated party.
V. TRANSFER AGENT INSTRUCTIONS. The Company shall issue irrevocable
instructions to its transfer agent to issue certificates, registered in the name
of the relevant Investor, for the Shares purchased by such Investor (the
"Irrevocable Transfer Agent Instructions"). Subsequent to the registration of
the Underlying Shares under the 1933 Act and Section 2 of the Registration
Rights Agreement, no such certificates shall bear the restrictive legend
specified in Section 2(i) of this Agreement. The Company warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 5, and stop transfer instructions to give effect to Section 2(h)
hereof will be given by the Company to its transfer agent and that the Shares
shall otherwise be freely transferable on the books and records of the Company.
Nothing in this Section shall affect in any way the Investor's obligations and
agreement set forth in Section 2(i) hereof to comply with all applicable
prospectus delivery requirements, if any, upon resale of the Shares.
VI. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation of the Company
hereunder to issue and sell the Common Stock to the Investor at the Closing is
subject to the satisfaction, at or before the Closing Date, respectively, of
each of the following conditions thereto, provided that these conditions are for
the Company's sole benefit and may be waived by the Company at any time in its
sole discretion:
(a) Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by the Investor in this Agreement hereof shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had first been made on and
as of the Execution Date and such Closing Date, respectively except for those
representations and warranties that address matters only as of a particular date
(which shall remain true and correct as of such particular date), with the same
effect as though such representations and warranties had first been made on and
as of the applicable Closing Date.
(b) Performance. All covenants, agreements and conditions contained in
-----------
this Agreement to be performed by the Investor on or prior to the applicable
Closing Date shall have been performed or complied with in all material
respects.
(c) Execution of Documents. The Investor shall have executed this
----------------------
Agreement and the Registration Rights Agreement and delivered the same to the
Company. As of the Closing Date, each such agreement shall remain in full force
and effect.
(d) No Order Pending. There shall not then be in effect any order
----------------
enjoining or restraining the transactions contemplated by this Agreement.
(e) No Law Prohibiting or Restricting Such Sale. There shall not be in
-------------------------------------------
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of
Page 10 of 15
<PAGE>
any person which shall not have been obtained to issue the Shares (except as
otherwise provided in this Agreement).
VII. CONDITIONS TO INVESTOR'S OBLIGATIONS. The obligation of each Investor
hereunder (i) to execute this Agreement and (ii) to purchase the Shares is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are such Investor's sole
benefit and may be waived by Investor at any time in its sole discretion:
(a) Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by the Company in Section 4 shall be true and correct in all
material respects on and as of the Execution Date or the Closing Date,
respectively, except for changes contemplated by this Agreement and except for
those representations and warranties that address matters only as of a
particular date (which shall remain true and correct as of such particular
date), with the same effect as through such representations and warranties had
been made on and as of the Execution Date or the Closing Date, respectively,
except in all cases where the failure of such representations and warranties to
be so true and correct would not (with respect to representations and warranties
not qualified by an Adverse Effect clause), individually or in the aggregate,
reasonably be expected to have an Adverse Effect on the Company and its
subsidiaries, taken as a whole.
(b) Performance. All covenants, agreements and conditions contained in
-----------
the Transaction Documents to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
(c) Execution of Documents. The Company shall have executed this
----------------------
Agreement, the Registration Rights Agreement and delivered the same to the
Investor. As of the Closing Date each such agreement shall remain in full force
and effect.
(d) No Order Pending. There shall not then be in effect any order
----------------
enjoining or restraining the transactions contemplated by this Agreement.
(e) No Law Prohibiting or Restricting Sale. There shall not be in
--------------------------------------
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person which shall not have been
obtained to issue the Shares (except as otherwise referenced in this Agreement).
(f) Legal Opinion. The Investor shall have received an opinion of the
-------------
Company's counsel, dated as of the Closing Date, in substantially the form as
Exhibit E attached hereto.
(g) Compliance Certificate. The Company shall have delivered to each
----------------------
Investor on the Closing Date a certificate executed by a duly authorized
officer, dated the applicable Closing Date, and certifying to the fulfillment of
the conditions specified in Sections 7(a) and 7(b).
(h) Insolvency. The Company is not insolvent and no Insolvency Proceeding
----------
has been commenced by or against the Company. As used herein, "Insolvency
Proceeding" means
Page 11 of 15
<PAGE>
any proceeding commenced by or against any person or entity under any provision
of the United States Bankruptcy Code, as amended, or under any other bankruptcy
or insolvency law, including assignments for the benefit of creditors, formal or
informal moratoria, compositions, extension generally with its creditors, or
proceedings seeking reorganization, arrangement, or other relief.
(i) Reporting Status. The Company shall have filed all reports required
----------------
to be filed with the SEC pursuant to the Exchange Act, and the Company's status
as an issuer required to file reports under the Exchange Act shall be effective.
VIII. GOVERNING LAW; MISCELLANEOUS.
(a) Governing Law. This Agreement and all acts and transactions pursuant
-------------
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New York,
without giving effect to principles of conflicts of law. The parties hereby
irrevocably submit to the non-exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of the any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper.
(b) Counterparts; Signatures by Facsimile. This Agreement may be executed
-------------------------------------
in counterparts and each such counterpart shall be deemed an original for all
purposes. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page were an original
thereof.
(c) Captions and Headings. The captions and headings of this Agreement
---------------------
are for convenience and ease of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
(d) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(e) Entire Agreement; Amendment. This Agreement, the Registration
---------------------------
Rights Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof and supersede all prior agreements and
understandings among the parties relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against which
enforcement of any such amendment, waiver, discharge or termination is sought.
Page 12 of 15
<PAGE>
(f) No Third Party Rights. Nothing in this Agreement shall create or be
---------------------
deemed to create any rights in any person or entity not a party to this
Agreement.
(g) Survival. Unless otherwise set forth in this Agreement, the
--------
warranties, representations and covenants of the Company and the Investor
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
(h) Publicity. Each Investor and the Company shall not issue any public
---------
statement concerning the transactions contemplated by this Agreement without the
prior written consent of the parties named in such public statement not to be
unreasonably withheld; provided, however, that the parties may disclose the
transaction or the terms hereof or thereof from time to time without the
approval of the party whose name is disclosed if (i) such approval has been
requested and not received and such party concludes (after consulting with
counsel) that it is required by law to disclose the transaction or the terms
thereof or (ii) to the extent that similar disclosure has been previously
approved pursuant to this Section 8(h). In addition, with respect to any press
releases issued by the Company, the Company shall provide copies to the
Investors prior to public dissemination thereof and shall consider Investors'
comments to such press release, if any, in good faith.
(i) No Strict Construction. The language used in this Agreement will be
----------------------
deemed to be the language chosen by the parties o express their mutual intent,
and no rules of strict construction will be applied against any party.
(j) Costs and Expenses. Each party hereto shall pay its own costs and
------------------
expenses incurred in connection herewith, including the fees of its counsel,
auditors and other representatives, whether or not the transactions contemplated
herein are consummated.
(k) Brokers. The Company has not engaged, consented to or authorized any
-------
broker, finder or intermediary to act on its behalf, directly or indirectly, as
a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement, except for Paramount Capital, Inc. The Company
hereby agrees to indemnify and hold harmless each Investor and its respective
Affiliates from and against all fees, commissions or other payments owing to any
party acting on behalf of the Company hereunder.
(l) Notices. Any notices required or permitted to be given under the
-------
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and shall be effective five days
after being placed in the mail, if mailed by regular U.S. mail, or upon receipt,
if delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile, in each case addressed to a party. The addresses for
such communications shall be:
If to the Company:
Cell Therapeutics, Inc.
201 Elliott Avenue West, Suite 400
Seattle, Washington 9811
Page 13 of 15
<PAGE>
Attention: James Bianco, Chief Executive Officer
Facsimile: (206) 284-6114
With copy to:
Wilson Sonsini Goodrich & Rosati
975 Page Mill Road
Palo Alto, California 94304
Facsimile: (650) 461-5375
Attention: Michael J. Kennedy, Esq.
If to Investor at its address set forth on its signature page.
Each party shall provide notice to the other party of any change in
address.
(m) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Company nor any Investor may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(n) Remedies. In addition to being entitled to exercise all rights
--------
provided herein or granted by law, including recovery of damages, each Investor
will be entitled to specific performance of the obligations of the Company under
the Transaction Documents. The Company and each Investor agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any
breach of its obligations described in the foregoing sentence and hereby agrees
to waive in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 14 of 15
<PAGE>
IN WITNESS WHEREOF, the undersigned Investor and the Company have
caused this Agreement to be duly executed as of the date first above written.
CELL THERAPEUTICS, INC. INVESTOR:____________________________
By:______________________________ By:__________________________________
Name: James Bianco Name:________________________________
Title: Chief Executive Officer Title:_______________________________
Address:_____________________________
_____________________________
_____________________________
Tel:_________________________________
Fax:_________________________________
Soc. Sec./
or Tax I.D.__________________________
Page 15 of 15
<PAGE>
EXHIBIT 4.2
CELL THERAPEUTICS, INC.
FORM OF REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of the 15th
day of February, 2000, by and between Cell Therapeutics, Inc., a Washington
corporation (the "Company") and the investor set forth on the signature page
hereto (the "Investor").
RECITALS:
The Company and the Investor have entered into a Securities Purchase
Agreement (the "Purchase Agreement") of even date herewith pursuant to which the
Company will issue and sell to the Investor shares of common stock, no par value
per share (the "Common Stock", of the company on the terms and conditions set
forth in the Purchase Agreement. A condition to the Investor's obligations
under the Purchase Agreement is that the Company and the Investor enter into
this Agreement in order to provide the Investor with certain rights to register
shares of the Company's Common Stock sold in the Offering. Capitalized terms
used herein, but not otherwise defined, shall have the meaning ascribed to such
term in the Purchase Agreement.
AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investor covenant and agree
as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (i) the shares of
Common Stock purchased in the Offering, (ii) the shares of Common Stock issuable
or issued upon exercise of the Paramount Warrants, and (iii) any other shares of
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the shares listed in (i) or (ii); provided, however, that the foregoing
definition shall exclude in all cases any Registrable Securities sold by a
person in a transaction in which his or her rights under this Agreement are not
assigned. Notwithstanding the foregoing, Common Stock or other securities shall
only be treated as Registrable Securities if and so long as they have not been
(A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
Page 1 of 10
<PAGE>
(c) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.9 of this Agreement;
(d) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any successor form that permits significant
incorporation by reference of the Company's filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(e) The term "SEC" means the Securities and Exchange Commission.
1.2 FORM S-3 REGISTRATION. (a) Unless otherwise instructed in
writing by the Holder, the Company will use its best efforts to effect a
registration on Form S-3 (or, if not available Form S-2 or S-1, the form so
utilized being the "Relevant Registration Statement") as soon as possible, but
in any event prior to 30 days after any issuance of Common Stock and all related
qualifications and compliances as would permit or facilitate the sale and
distribution of such shares of Holder's Registrable Securities that Holder
requests; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance pursuant to this Section 1.2
(1) if the Company shall furnish to the Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be effected at such time
because the filing thereof would require premature disclosure of a potential
transaction or transactions (a "Potential Transaction"), in which event the
Company shall have the right to defer the filing of such registration statement
for a period of not more than 60 days; provided, however, that the Company shall
not utilize this right more than once in any 270 day period; or (2) in any
particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(b) If (1) the Relevant Registration Statement is not filed on or
prior to the thirty (30) days specified above (subject to subclause(x)), or (2)
the Company fails to file with the Commission a request for acceleration in
accordance with Rule 12d1-2 promulgated under the Exchange Act within five (5)
days of the date that the Company is notified (orally or in writing, whichever
is earlier) by the Commission that a Relevant Registration Statement will not be
"reviewed," or not subject to further review or comment, or (3) a Relevant
Registration Statement is not declared effective by the Commission on or prior
to (subject to subclause x) ninety (90) days from the issuance of the Common
Stock (or one hundred twenty (120) days from filing in the event the Company
then has an S-4 Registration Statement on file), or (4) a Relevant Registration
Statement is filed with and declared effective by the Commission but thereafter
ceases to be effective as to all Registrable Securities at any time prior to the
expiration of twenty-four (24) months from the last issuance of securities
covered by such Relevant Registration Statement without being succeeded within
ten (10) days by a subsequent Relevant Registration Statement filed with and
declared effective by the Commission, or (5) trading in the Common Stock shall
be suspended from the NASDAQ or a Subsequent Market for more than three (3)
Business Days (which need not be consecutive days), or (6) an amendment to a
Relevant Registration Statement is not filed by the Company with the Commission
within twenty (20) days of the Commission's notifying the Company that such
amendment is required in order
Page 2 of 10
<PAGE>
for the Relevant Registration Statement to be declared effective (any such
failure or breach being referred to as an "Event," and for purposes of clauses
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(1) and (3) the date on which such Event occurs, or for purposes of clause (2)
the date on which such five (5) day period is exceeded, or for purposes of
clauses (4) and (6) the date which such 10 day-period is exceeded, or for
purposes of clause (5) the date on which such three (3) Business Day-period is
exceeded, being referred to as an "Event Date"), then, on an Event Date and each
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monthly anniversary thereof until the earlier to occur of (i) the third (3rd)
monthly anniversary of the Event Date and (ii) such time as the applicable Event
is cured, the Company shall pay to the Holder one percent (1%) of the aggregate
Purchase Price paid by such Holder in the Offering, in cash, as liquidated
damages and not as a penalty. Commencing on the (3rd) monthly anniversary of the
Event Date and on each monthly anniversary thereof until the applicable Event is
cured, the Company shall pay to the Holder 3% of the aggregate Purchase Price
paid by such Holder in the Offering, in cash, as liquidated damages and not as a
penalty. If the Company fails to pay the liquidated damages hereunder in full
pursuant to this Section on the date such amount is due in accordance with this
Section, the Company will pay interest thereon at a rate of 18% per annum (or
the lesser amount permitted by applicable law), accruing daily from such date
until the liquidated damages hereunder, plus all such interest thereon, are paid
in full.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under Section 1.2
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible, use its best commercial efforts to:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and cause such registration statement to
become effective, and, upon the request of the Holder of the Registrable
Securities registered thereunder, keep such registration statement effective for
twenty-four (24) months.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration.
(c) Furnish to the Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Holder may reasonably request in
order to facilitate the disposition of Registrable Securities owned by the
Holder.
(d) Register and qualify the Registrable Securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holder, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) Notify the Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a
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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.
(f) Cause all such Registrable Securities registered pursuant the
Section 1.2 to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(g) Provide Holder's counsel copies of such registration
statement, amendments and supplements prior to filing with the SEC, and promptly
provide such counsel with any comment letters or similar notices received by the
Company from the SEC with respect thereto.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of the Holder, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the Holder and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the Holder.
1.4 RESTRICTIONS ON AND PROCEDURE FOR SALES PURSUANT TO A REGISTRATION
STATEMENT.
Delay of Sale. The Company may refuse to permit the Holder to resell
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any Registrable Securities for a specified period of time; provided, however,
that (a) in order to exercise this right, the Company must deliver a certificate
in writing to the Holder to the effect that the registration statement in its
then current form omits discussion of a Potential Transaction or contains an
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, and (b) in no event shall such delay
exceed 60 days in the event of a Potential Transaction, or 20 days in other
cases (none of which other cases shall have a duration of more than five
consecutive business days) in any twelve-month period, and (c) in no event shall
this right of delay be exercised within five business days of the effective date
of a Relevant Registration Statement. During any suspension as contemplated by
this Section 1.4 (a)(iii), the Company will not allow any of its officers or
directors to buy or sell shares of the Company's securities.
1.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of the Holder that the Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's
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Registrable Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 of this Agreement if, as a result
of the application of the preceding sentence, the anticipated aggregate value of
the Registrable Securities to be included in the registration does not equal or
exceed the anticipated aggregate value required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(b).
1.6 EXPENSES OF REGISTRATION. All expenses incurred in connection
with a registration requested pursuant to Section 1.2, including (without
limitation) all registration, filing, qualification, printers' and accounting
fees and the reasonable fees and disbursements of one counsel for the selling
Holder selected by Holder with the approval of the Company, which approval shall
not be unreasonably withheld, and counsel for the Company shall be borne by the
Company.
1.7 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless Holder and each person, if any, who controls Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law; and the
Company will pay to each such Holder or controlling person, as incurred, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable to any Holder or controlling person for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder or controlling person.
(b) To the extent permitted by law, the Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act and any controlling person of
any Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case
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to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by Holder expressly
for use in connection with such registration; and Holder will pay, as incurred,
any legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.7(b), in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 1.7(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided, that in no
event shall any indemnity under this subsection 1.7(b) exceed the net proceeds
from the offering received by Holder, except in the case of willful fraud by
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.7 but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by Holder
under this subsection 1.7(d) exceed the net proceeds from the offering received
by Holder, except in the case of willful fraud by Holder. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
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(e) The obligations of the Company and Holder under this Section
1.7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holder the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to
use its best commercial efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to Holder, so long as Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Securities
Act and the Exchange Act, or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time when it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
1.9 [RESERVED]
1.10 "MARKET STAND-OFF" AGREEMENT. Holder hereby agrees that, during
the period of duration (up to, but not exceeding, 90 days) specified by the
Company and an underwriter of Common Stock or other securities of the Company,
following the effective date of an underwritten registration statement of the
Company filed under the Securities Act, it shall not, to the extent requested by
the Company and such underwriter if, and only if, at the time of such request
Holder is subject to reporting under Section 16(a) of the Exchange Act with
respect to securities of the Company beneficially owned by it, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except Common Stock included
in such registration.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the Holder
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period, and the Holder agrees that, if so
requested, the Holder will execute an agreement in the form provided by the
underwriter containing terms which are essentially consistent with the
provisions of this Section 1.10.
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1.11 TERMINATION OF REGISTRATION RIGHTS. With respect to shares of
Registrable Securities issued to the Investor at the Closing, the Holder shall
not be entitled to exercise any right provided for in this Section 1 after such
time as Rule 144(k) under the Securities Act is available for the sale of all of
such Holder's shares that were issued at the Initial Closing or the applicable
Subsequent Closing. For purposes of clarity, the registration rights of a Holder
provided for in this Section 1 shall terminate in stages, which stages shall
correspond to the initial issuance date of such Registrable Securities.
2. MISCELLANEOUS.
2.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any of the Common Stock). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
2.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
or waived only with the written consent of the Company and the holders of a
majority of the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
2.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
the signature page hereto or as subsequently modified by written notice, and if
to CTI, with a copy to Wilson, Sonsini, Goodrich & Rosati, 975 Page Mill Road,
Palo Alto, CA 94304, Tel: (415) 947-2008, Fax: [_______], Attn: Michael Kennedy.
2.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
2.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in accordance with
the laws of the State of New York, without giving effect to principles of
conflicts of laws.
2.6 COUNTERPARTS. This Agreement may be executed 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.
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2.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[Signature Page Follows]
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The parties have executed this Registration Rights Agreement as of the date
first above written.
CELL THERAPEUTICS, INC. INVESTOR:________________________
By:________________________ By:________________________________
Name: James Bianco
Title: Chief Executive Officer Name:______________________________
Title:_____________________________
Address:___________________________
___________________________
___________________________
Tel:_______________________________
Fax:_______________________________
Soc. Sec./
or Tax I.D.________________________
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Exhibit 5.1
April 11, 2000
Cell Therapeutics
201 Elliott Avenue West
Seattle, Washington 98119
Re: Cell Therapeutics, Inc. -- Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(No. 333-33872), (the "Registration Statement"), and Amendment No. 1 thereto,
filed or to be filed by Cell Therapeutics, Inc., a Washington corporation (the
"Company"), with the Securities and Exchange Commission in connection with the
registration pursuant to the Securities Act of 1933, as amended (the "Act"), of
3,503,334 shares of the Company's Common Stock, no par value (the "Common
Stock"). The Common Stock is to be sold from time to time as set forth in the
Registration Statement.
Based on such examination, we are of the opinion that when the issuance of
the shares of Common Stock has been duly authorized by appropriate corporate
action and the shares of Common Stock have been duly issued, sold and delivered,
the shares of Common Stock will be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, and any amendments thereto. In giving such consent, we
do not believe that we are "experts" within the meaning of such term as used in
the Act or the rules and regulations of the Securities and Exchange Commission
issued thereunder with respect to any part of the Registration Statement,
including this opinion as an exhibit or otherwise.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI,
Professional Corporation
