-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WqmkOwKrQk7fNsJPoYtn0LNollrIKEDS0X2fzEn8RwwtxZt3zGE3sXvHAsAX4qjn UNSj8uD1mvbLTeL3qntiOg== 0000929624-00-000540.txt : 20000413 0000929624-00-000540.hdr.sgml : 20000413 ACCESSION NUMBER: 0000929624-00-000540 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000412 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CELL THERAPEUTICS INC CENTRAL INDEX KEY: 0000891293 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 911533912 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-33872 FILM NUMBER: 599616 BUSINESS ADDRESS: STREET 1: 201 ELLIOTT AVE W STREET 2: STE 400 CITY: SEATTLE STATE: WA ZIP: 98119 BUSINESS PHONE: 2062707100 S-3/A 1 AMENDMENT #1 TO FORM S-3 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) --------------- Washington 2384 91-1533912 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification Number)
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. [_] --------------- CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------
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 - ----------------------------------------------------------------------------------- Common Stock, no par value per share....... 3,503,334(/2/) $21.00 $73,570,014 $19,423(/3/) - ----------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------
(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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 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 -------- Total............................................................ $100,923 ========
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)
- -------- * 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 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:
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.
/s/ James A. Bianco, M.D. *By ______________________ James A. Bianco, M.D. Attorney-in-fact II-3 INDEX TO EXHIBITS
Exhibit Number Exhibit Title ------- ------------- 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)
- -------- * Previously filed. EX-4.1 2 SECURITIES PURCHASE AGREEMENT 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 (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 (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 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 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 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 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 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 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 (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 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 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 (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 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 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 EX-4.2 3 FORM OF REGISTRATION RIGHTS AGREEMENT 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 (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 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 ----- (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 ---------- 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 Page 3 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 ------------- 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 Page 4 of 10 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 Page 5 of 10 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. Page 6 of 10 (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. Page 7 of 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. Page 8 of 10 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] Page 9 of 10 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.________________________ Page 10 of 10 EX-5.1 4 OPINION OF WILSON SONSINI 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 -----END PRIVACY-ENHANCED MESSAGE-----