As filed with the Securities and Exchange Commission on April 12, 2000
Registration No. 333-33872
AMENDMENT NO. 1
Washington 2384 91-1533912
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock, no par
value per share....... 3,503,334(/2/) $21.00 $73,570,014 $19,423(/3/)
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(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.
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.
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
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Total............................................................ $100,923
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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
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
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)
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* 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.
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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
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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:
Signature Title Date
--------- ----- ----
/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.
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/s/ James A. Bianco, M.D. *By ______________________ |
James A. Bianco, M.D.
Attorney-in-fact
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
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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)
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* Previously filed.
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.
II. INVESTOR'S REPRESENTATIONS AND WARRANTIES. Each Investor, severally, and not jointly, represents and warrants to the Company that, as of the date hereof:
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.
appropriate in connection with this Agreement and all exhibits hereto and the transactions contemplated herein and therein.
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.
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.
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.
IV. COVENANTS.
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.
(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.
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:
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:
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.
VIII. GOVERNING LAW; MISCELLANEOUS.
If to the Company:
Cell Therapeutics, Inc.
201 Elliott Avenue West, Suite 400
Seattle, Washington 9811
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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.__________________________
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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;
(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
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
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.
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
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
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.
(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.
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.
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]
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