EXHIBIT 10.2
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement (the "Agreement") is made as of August 29, 2005 by and between ViaCell, Inc., a
Delaware corporation (the "Company"), and Amgen Inc., a Delaware corporation ("Purchaser").
The Company and Purchaser hereby confirm their respective agreements as follows:
1. AUTHORIZATION AND PURCHASE OF THE WARRANT.
1.1 Authorization of the Warrant. The Company's Board of Directors has authorized the issuance by the Company and the sale to the Purchaser of a warrant (the "Warrant") to purchase an aggregate of up to Two Hundred Thousand (200,000) fully paid and nonassessable shares of Common Stock, par value $0.01 per share (the "Common Stock"), of the Company, all as more fully described, and subject to the conditions set forth, below and in the form of Warrant annexed hereto as Exhibit 1.1. The shares of Common Stock issuable upon exercise of the Warrant are herein referred to as the "Warrant Shares"; and the Warrant and the Warrant Shares are sometimes herein together referred to as the "Securities."
1.2 Purchase of Warrant. Subject to the terms and conditions set forth below and in the Warrant, the Company agrees to issue to Purchaser, and Purchaser hereby agrees to purchase from the Company, the Warrant in consideration for the rights granted to the Company under that certain Amendment No.1 to the Collaboration Agreement (the "Amendment") by and between the Company and Purchaser. A copy of the Amendment, in the form to be executed and delivered by each of the Purchaser and the Company on the Closing Date (as defined below), is annexed hereto as Exhibit 1.2.
2. THE CLOSING.
Closing Date. The closing of the purchase and sale of the Warrant to Purchaser hereunder (the "Closing") shall be held at the offices of the Company, at 5:00 p.m. EST, on August 29, 2005, or at such other time and place as the Company and Purchaser mutually agree upon, orally or in writing (the "Closing Date"). On the Closing Date, the Company shall deliver to Purchaser the Warrant registered in the name of Purchaser.
3. CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING.
The obligations of Purchaser to the Company under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived by Purchaser:
3.1 Representations and Warranties. The representations and warranties of the Company contained in Section 5 shall be true and correct on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing (except for representations and warranties that speak as of a specific date, which need only be true and correct as of such date).
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3.2 Performance. The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.
3.3 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required to be in effect as of the Closing in connection with the lawful issuance and sale of the Warrant pursuant to this Agreement shall be obtained and effective as of the Closing.
3.4 Consents and Waivers. The Company shall have obtained any and all consents and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement, including but not limited to the waiver of any rights of participation held by any other shareholder of the Company.
3.5 Compliance Certificate. The President of the Company shall deliver to Purchaser at the Closing a certificate certifying that the conditions specified in Sections 3.1, 3.2, 3.3 and 3.4 have been fulfilled.
3.6 Secretary's Certificate. The Secretary of the Company shall deliver to Purchaser at the Closing a certificate certifying as to (i) the incumbency of the Company's principal officers, and (ii) a copy of the resolutions of the Board of Directors of the Company, authorizing and approving all matters in connection with this Agreement and the Agreements (as defined herein) and the transactions contemplated hereby and thereby.
3.7 Opinion of Company Counsel. Purchaser shall have received from
Ropes & Gray LLP counsel for the Company, an opinion, dated as of the Closing, in substantially the form of Exhibit 3.7.
3.8 Amendment. The Company shall have executed and delivered the Amendment and such agreement shall be in full force and effect.
3.9 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing hereby and all documents and instruments incident to such transactions shall be satisfactory in substance and form to the Purchaser, and the Purchaser shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request.
4. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company to Purchaser under this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived by Company:
4.1 Representations and Warranties. The representations and warranties of Purchaser contained in Section 6 shall be true and correct on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except for representations and warranties that speak as of a specific date, which need only be true and correct as of such date).
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4.2 Performance. All covenants, agreements and conditions contained in this Agreement to be performed by Purchaser on or prior to the Closing shall have been performed or complied with in all material respects.
4.3 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required to be in effect as of the Closing in connection with the lawful issuance and sale of the Warrant pursuant to this Agreement shall be obtained and effective as of the Closing.
4.4 Amendment. The Purchaser shall have executed the Amendment and such agreement shall be in full force and effect.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Purchaser that, except as set forth on a Schedule of Exceptions attached hereto as Exhibit 5 (which schedule shall specifically identify the relevant subsection hereof modified thereby and the contents of which shall be deemed to be representations and warranties as if made hereunder):
5.1 Organization. The Company is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization. Each of the Company and its Subsidiaries (as defined in Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")) has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted and as described in the SEC Documents (hereinafter defined) and is registered or qualified to do business and in good standing in each jurisdiction in which it owns or leases property or transacts business except where the failure to be so qualified would not have a material adverse effect upon the business, financial condition, properties or operations of the Company and its Subsidiaries, considered as one enterprise.
5.2 Due Authorization; Consents. The Company has all requisite corporate power and has taken all requisite corporate action to execute and deliver each of this Agreement and the Warrant (collectively, the "Agreements"), to sell and issue the Securities and to carry out and perform all of its obligations hereunder and thereunder. Each of the Agreements has been duly authorized, executed and delivered on behalf of the Company and constitutes the valid and binding agreement of the Company, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors' rights generally, and as limited by laws relating to the availability of a specific performance, injunctive relief, or other equitable remedies. All consents, approvals and authorizations of, and registrations, qualifications and filings with, any federal or state governmental agency, authority or body, or any third party, required in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been obtained and are effective as of the Closing.
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5.3 Validity of Securities. The Warrant, when sold against the consideration therefor as provided herein, will be validly authorized and issued, fully paid and nonassessable. The issuance and delivery of the Warrant is not subject to preemptive or any similar rights of the stockholders of the Company or any liens or encumbrances arising through the Company; and when the Warrant Shares are issued upon exercise and in accordance with the terms of the Warrant, they will be validly issued and outstanding, fully paid and nonassessable and free of any liens or encumbrances arising through the Company.
5.4 SEC Documents; Financial Statements. Each of the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2004, the Company's Notice of Annual Meeting of Stockholders and Proxy Statement dated April 29, 2005, and the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, and all other documents, if any, filed or furnished by the Company since January 20, 2005 pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act;" collectively, the above documents shall be referred to hereinafter as the "SEC Documents"), as filed by the Company with the Securities and Exchange Commission (the "SEC") or incorporated by reference therein conforms in all material respects to the requirements of the Exchange Act, as applicable, and the rules, regulations and instructions of the SEC thereunder. Each of the SEC Documents, as of its respective date, contains no untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading. The financial statements of the Company included in the SEC Documents (the "Financial Statements") comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto. Except as may be indicated in the notes to the Financial Statements, the Financial Statements have been prepared in accordance with generally accepted accounting principles consistently applied and fairly present the consolidated financial position and operating results of the Company and its subsidiaries as of the dates, and for the periods, indicated therein.
5.5 Non-Contravention. The execution and delivery of the Agreement, the issuance and sale of the Securities to be sold by the Company under this Agreement, the fulfillment of the terms of the Agreements and the consummation of the transactions contemplated hereby will not (A) conflict with or constitute a violation of, or default (with the passage of time or otherwise) under, (i) any material bond, debenture, note or other evidence of indebtedness, or under any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which the Company or any Subsidiary is a party or by which it or any of its Subsidiaries or their respective properties are bound, (ii) the charter, by-laws or other organizational documents of the Company or any Subsidiary, or (iii) any law, administrative regulation applicable to the Company or any Subsidiary or any ordinance or order of any court or governmental agency, arbitration panel or authority applicable to and specifically naming the Company or any Subsidiary or their respective properties, or (B) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any of the material properties or assets of the Company or any Subsidiary or an acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or any material indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them is bound
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or to which any of the property or assets of the Company or any Subsidiary is subject. No consent, approval, authorization or other order of, or registration, qualification or filing with, any regulatory body, administrative agency, or other governmental body in the United States is required for the execution and delivery of the Agreements and the valid issuance and sale of the Securities to be sold pursuant to this Agreement, other than such as have been made or obtained, and except for any securities filings required to be made under federal or state securities laws.
5.6 Liabilities. Except as set forth in the SEC Documents, the Company has no material indebtedness for borrowed money that the Company has directly or indirectly created, incurred, assumed, or guaranteed, or with respect to which the Company has otherwise become directly or indirectly liable.
5.7 Capitalization. The capitalization of the Company as of August 29, 2005 is as set forth in the SEC Documents (excluding unvested options and treasury shares). The Company has not issued any capital stock since that date other than pursuant to (i) employee benefit plans disclosed in the SEC Documents, or (ii) outstanding warrants or options disclosed in the SEC Documents. The outstanding shares of capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and were not issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in or contemplated by the SEC Documents, there are no outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company or any Subsidiary, or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company is a party or of which the Company has knowledge and relating to the issuance or sale of any capital stock of the Company or any Subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options. Without limiting the foregoing, no preemptive right, co-sale right, right of first refusal, registration right, or other similar right exists with respect to the Warrant or the issuance and sale thereof. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Warrant or the Warrant Shares upon the exercise of the Warrant. The Company owns the entire equity interest in each of its Subsidiaries, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, other than as described in the SEC Documents. Except as disclosed in the SEC Documents, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Common Stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company's stockholders.
5.8 Legal Proceedings. There is no legal or governmental proceeding pending or, to the knowledge of the Company, threatened to which the Company or any Subsidiary is or may be a party or of which the business or property of the Company or any Subsidiary is subject that is required to be disclosed in the SEC Documents and that is not disclosed in the SEC Documents.
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5.9 No Violations. Neither the Company nor any Subsidiary is in violation of its charter, bylaws, or other organizational document, or in violation of any law, administrative regulation, ordinance or order of any court or governmental agency, arbitration panel or authority applicable to the Company or any Subsidiary, which violation, individually or in the aggregate, would be reasonably likely to have a material adverse effect on the business or financial condition of the Company and its Subsidiaries, considered as one enterprise, or is in default (and there exists no condition which, with the passage of time or otherwise, would constitute a default) in any material respect in the performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any other material agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or by which the properties of the Company or any Subsidiary are bound, which would be reasonably likely to have a material adverse effect upon the business or financial condition operating results of the Company and its Subsidiaries, considered as one enterprise.
5.10 Governmental Permits, Etc. Each of the Company and its Subsidiaries has all necessary franchises, licenses, certificates and other authorizations from any foreign, federal, state or local government or governmental agency, department, or body that are currently necessary for the operation of the business of the Company and its Subsidiaries as currently conducted and as described in the SEC Documents except where the failure to currently possess could not reasonably be expected to have a material adverse effect upon the business or financial condition operating results of the Company and its Subsidiaries, considered as one enterprise.
5.11 Title to Properties and Assets. Except as set forth in the SEC Documents, the Company has good and marketable title to the properties and assets that it owns held in each case subject to no lien of any kind except for liens for taxes that are not yet due and payable or, in the case of leased real property, easements and other rights or restrictions of record that do not materially impair the use or value of such property to the Company. With respect to the property and assets it leases, the Company is in compliance with such leases and, to the best of the Company's knowledge, the Company holds valid leasehold interests in such assets free of any liens, encumbrances, security interests or claims of any party other than the lessors of such property and assets.
5.12 Intellectual Property. Subject to the matters discussed under "Risk Factors" in the SEC Documents (i) each of the Company and its Subsidiaries owns or possesses sufficient rights to use all patents, patent rights, trademarks, copyrights, licenses, inventions, trade secrets, trade names and know-how (collectively, "Intellectual Property") described or referred to in the SEC Documents as owned by it or that are necessary for the conduct of its business as now conducted or as proposed to be conducted as described in the SEC Documents except where the failure to currently own or possess would not have a material adverse effect on the condition (financial or otherwise), earnings, operations, business or business prospects of the Company and its Subsidiaries considered as one enterprise, (ii) neither the Company nor any of its Subsidiaries has received any notice of, or has any knowledge of, any infringement of asserted rights of a third party with respect to any Intellectual Property that, individually or in the aggregate, would have a material adverse effect on the financial condition or business of the Company and its Subsidiaries considered as one enterprise and (iii) neither the Company nor any of its Subsidiaries has received any notice of any infringement of rights of a third party with
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respect to any Intellectual Property that, individually or in the aggregate, would have a material adverse effect upon the business, operating results or financial condition, operating results of the Company and its Subsidiaries, considered as one enterprise.
5.13 No Infringement. Except as disclosed in the SEC Documents, to the best of the Company's knowledge, the Company has not violated or infringed, and is not currently violating or infringing, and the Company has not received any communications alleging that the Company (or any of its employees or consultants) has violated or infringed or, by conducting its business as proposed, would violate or infringe, any Intellectual Property of any other person or entity.
5.14 Environmental Matters. During the period that the Company has owned or leased its properties and facilities, (a) there have been no disposals, releases or threatened releases of Hazardous Materials (as defined below) on, from or under such properties or facilities, (b) neither the Company nor, to the Company's knowledge, any third party, has used, generated, manufactured or stored on, under or about such properties or facilities or transported to or from such properties or facilities any Hazardous Materials. The Company has no knowledge of any presence, disposals, releases or threatened releases of Hazardous Materials on, from or under any of such properties or facilities, which may have occurred prior to the Company having taken possession of any of such properties or facilities. For purposes of this Agreement, the terms "disposal", "release", and "threatened release" shall have the definitions assigned thereto by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended ("CERCLA"). For the purposes of this Section, "Hazardous Materials" shall mean any hazardous or toxic substance, material or waste which is regulated under, or defined as a "hazardous substance", "pollutant", "contaminant", "toxic chemical", "hazardous material", "toxic substance", or "hazardous chemical" under (1) CERCLA; (2) the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; (4) the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; (5) the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; (6) regulations promulgated under any of the above statutes; or (7) any applicable state or local statute, ordinance, rule, or regulation that has a scope or purpose similar to those statutes identified above.
5.15 No Material Adverse Change. Except as disclosed in the SEC Documents, since January 20, 2005, there has not been (i) any material adverse change in the financial condition or operating results of the Company and its Subsidiaries considered as one enterprise nor has any material adverse event occurred to the Company or its Subsidiaries, (ii) any material adverse event affecting the Company, (iii) any obligation, direct or contingent, that is material to the Company and its Subsidiaries considered as one enterprise, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary course of business, (iv) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any of its Subsidiaries, or (v) any loss or damage (whether or not insured) to the physical property of the Company or any of its Subsidiaries which has been sustained which has a material adverse effect on the condition (financial or otherwise), operating results, operations, business or business prospects of the Company and its Subsidiaries considered as one enterprise.
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5.16 Disclosure. No representation or warranty by the Company in this Agreement or in any statement or certificate signed by any officer of the Company furnished or to be furnished to the Purchaser pursuant to this Agreement contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading.
5.17 NASDAQ Compliance. The Company's Common Stock is registered pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock Market, Inc. National Market (the "Nasdaq National Market"), and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or de-listing the Common Stock from the Nasdaq National Market, nor has the Company received any notification that the SEC or the National Association of Securities Dealers, Inc. ("NASD") is contemplating terminating such registration or listing.
5.18 Listing. The Company shall comply with all requirements of the National Association of Securities Dealers, Inc. with respect to the issuance of the Warrant Shares and the listing thereof on the Nasdaq National Market.
5.19 No Manipulation of Stock. The Company has not taken and will not, in violation of applicable law, take, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Securities.
5.20 Confidential Information and Invention Assignment Agreements. Each employee, consultant and officer of the Company and each Subsidiary has executed an agreement with the Company or a Subsidiary, as applicable, regarding confidentiality and proprietary information. The Company is not aware that any of its or any Subsidiary's employees or consultants is in violation thereof, and the Company will use its best efforts to prevent any such violation.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to the Company as follows:
6.1 Investment Experience. Purchaser is, and at the time it exercises the Warrant issued to it will be, an accredited investor within the meaning of Rule 501 under the Securities Act of 1933, as amended (the "Securities Act"). Purchaser is aware of the Company's business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. Purchaser 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 Securities. Purchaser has had the opportunity to ask questions and receive answers concerning the terms and conditions of its purchase of the Securities and to obtain any additional information from the Company that is necessary. Purchaser believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Securities.
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6.2 Investment Intent. This Agreement is made with Purchaser in reliance upon Purchaser's representation to the Company, which by Purchaser's execution of this Agreement it hereby confirms that it is purchasing the Securities for investment for its own account, not as a nominee or agent, only and not with a view to, or for resale in connection with, any "distribution" thereof within the meaning of the Securities Act and Purchaser has no present intention of selling, granting any participation in or otherwise distributing the same. Purchaser understands that the Securities have not been registered under the Securities Act or registered or qualified under any state securities law in reliance ...