-----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, KVSN0FJ5e82LTcZ/R0hPuPgZRAJrmKjJiv3UZ0X6Tfy/BftA2hnhDys6b+skuzD0 RN7P66c9S3MyWFKKrwvRfQ== /in/edgar/work/20000830/0001095811-00-003107/0001095811-00-003107.txt : 20000922 0001095811-00-003107.hdr.sgml : 20000922 ACCESSION NUMBER: 0001095811-00-003107 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000830 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COULTER PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000942416 STANDARD INDUSTRIAL CLASSIFICATION: [2834 ] IRS NUMBER: 943219075 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-44792 FILM NUMBER: 713641 BUSINESS ADDRESS: STREET 1: 600 GATEWAY BOULEVARD CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 650-553-2000 MAIL ADDRESS: STREET 1: 600 GATEWAY BOULEVARD CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 S-3 1 f65205s-3.txt FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 2000 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-3 ------------------------ REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 COULTER PHARMACEUTICAL, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 2834 94-3219075 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
600 GATEWAY BOULEVARD SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 553-2000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) MICHAEL F. BIGHAM PRESIDENT AND CHIEF EXECUTIVE OFFICER COULTER PHARMACEUTICAL, INC. 600 GATEWAY BOULEVARD SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 553-2000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPY TO: JAMES C. KITCH, ESQ. COOLEY GODWARD LLP FIVE PALO ALTO SQUARE 3000 EL CAMINO REAL PALO ALTO, CA 94306-2155 (650) 843-5000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable 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. [ ] 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 MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par value............. 1,655,000 $23.86 $39,488,300 $10,425 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low prices of the Registrant's common stock on August 25, 2000 as reported on the Nasdaq National Market. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON THE DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH 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 A DATE THAT THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED AUGUST 30, 2000 1,655,000 SHARES COULTER PHARMACEUTICAL, INC. COMMON STOCK The selling stockholders listed on page 14 are offering up to 1,655,000 shares of common stock of Coulter Pharmaceutical, Inc., a Delaware corporation. We sold shares to the selling stockholders on August 29, 2000 in a private transaction. Please see "Where You Can Find More Information" on page 12 for additional information about us on file with the United States Securities and Exchange Commission. Our common stock trades on the Nasdaq National Market under the symbol CLTR. On August 25, 2000, the last reported sale price of our common stock was $23.86 per share. We will not be paying any underwriting discounts or commissions in this offering. INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 2000. 3 TABLE OF CONTENTS
PAGE ---- THE COMPANY................................................. 1 RISK FACTORS................................................ 3 CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS........ 12 WHERE YOU CAN FIND MORE INFORMATION......................... 12 USE OF PROCEEDS............................................. 13 SELLING STOCKHOLDERS........................................ 14 PLAN OF DISTRIBUTION........................................ 15 LEGAL MATTERS............................................... 15 EXPERTS..................................................... 15
------------------------- WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY INFORMATION OR REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU SHOULD NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT OFFER TO SELL OR BUY ANY SHARES IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL. THE INFORMATION IN THIS PROSPECTUS IS CURRENT AS OF THE DATE ON THE COVER. Bexxar(TM) is a trademark of Coulter Pharmaceutical. This prospectus also may contain trademarks of other companies. i 4 THE COMPANY We are engaged in the development of novel drugs and therapies for the treatment of people with cancer and autoimmune diseases. We are currently developing a family of potential therapeutics based upon two drug discovery programs: therapeutic antibodies and targeted oncologics. Within these broad drug discovery programs, we are currently concentrating on several distinct platform technologies: therapeutic antibodies consisting of both conjugated and unconjugated antibody technology, and targeted oncologics based on tumor activated pro-drug ("TAP") technology and tumor specific targeting ("TST") technology. We are also developing a portfolio of proprietary ultra potent compounds which we believe will be suitable payloads for both our TAP and TST platforms. Ultra potent compounds generally are at least 1,000 times more potent than standard chemotherapeutic agents and are active against resistant tumor cells. Our most advanced product candidate, Bexxar(TM)(tositumomab, iodine I 131 tositumomab), consists of a monoclonal antibody conjugated with a radioisotope. We intend to seek a priority review for the initial approval of Bexxar for the treatment of low-grade and transformed low-grade non-Hodgkin's lymphoma ("NHL") in patients who have relapsed after or are refractory to chemotherapy, while simultaneously pursuing clinical trials to expand the potential use of Bexxar to other indications. In a Phase I/II clinical trial of Bexxar, 42 patients with low-grade or transformed low-grade NHL who had relapsed from previous chemotherapy regimens achieved an 83% overall response rate and a 48% complete response rate. Of those patients who experienced a complete response, the average duration of response was 20.2 months as of July 1997, the date of the final study report. In December 1997, we presented data on a multi-center, Phase II clinical trial in heavily pre-treated low-grade and transformed low-grade NHL patients. Of the 45 evaluable patients, 31% achieved a complete response with the median duration of complete response not yet reached (longest complete response of greater than 20 months). In December 1998, we presented data from our pivotal Phase III clinical trial on 60 NHL patients who were refractory to chemotherapy. The results showed, with statistical significance, that more patients experienced remission with a single therapeutic dose of Bexxar compared to their last chemotherapy regimen and that these remissions were of longer duration. The investigator assessed overall response rate was 65% with a median duration of response of 6.5 months. We also announced in December 1998, that the United States Food and Drug Administration ("FDA") had designated Bexxar as a Fast Track Product for which the agency will take appropriate actions to expedite development and review. The designation was awarded because one of the targeted indications for the therapy is transformed, low-grade NHL, a life-threatening disease, representing an unmet medical need. We believe that Bexxar, if approved, would become the first radioimmunotherapy approved in the United States for the treatment of people with cancer. Significant uncertainty exists as to the extent to which the Fast Track designation will result in a priority review and approval, and this designation does not ensure product approval. The FDA could require additional clinical trials or other information before approving Bexxar. We cannot predict the ultimate impact, if any, of the Fast Track designation on the timing or likelihood of FDA approval of Bexxar. We are conducting, and intend to pursue, additional trials to expand the potential use of Bexxar to other indications, both as a single agent and in combination with chemotherapy. We have completed enrollment of a single-center Phase II trial in newly diagnosed low-grade NHL patients and presented data from this trial in May 2000. Of the 76 patients enrolled in the trial, 97% responded to Bexxar with 76% achieving a complete response. Additionally, 84% of the 37 patients with evidence of NHL at the molecular level at the start of the trial showed no evidence of NHL at molecular levels using polymerase chain reaction analysis following treatment with Bexxar. We also have completed enrollment of a single-center Phase II trial in newly diagnosed low-grade NHL patients evaluating a sequential combination regimen of the chemotherapeutic agent fludarabine followed by Bexxar. In December 1999, we presented an interim analysis of fourteen patients for whom adequate data was available. Overall response rate following the fludarabine portion of the regimen was 93%, of which 14% achieved a complete response. The combined overall response rate and complete response rate of these patients after receiving both fludarabine and Bexxar increased to 100%, and 71%, respectively. 1 5 The objective of our TAP program is to broaden significantly the therapeutic windows of conventional chemotherapeutic compounds. We are currently developing a pro-drug version of doxorubicin to treat certain solid tumor cancers with the objective of filing an Investigational New Drug ("IND") application and commencing clinical trials in the second half of 2001. The objective of our TST program is to selectively target ultra potent compounds to tumor cells with the goal of developing better tolerated and more efficacious anti-tumor therapeutics. Ultra potent compounds generally are at least 1,000 times more potent than standard chemotherapeutic agents and are active against resistant tumor cells. The objective of our Type I interferon research and development program is to develop monoclonal antibodies specific for the Type I interferon receptor as potential therapeutics for the treatment of autoimmune diseases. We have developed human versions of our lead monoclonal, 64G12, and expect to select our lead candidate in the first half of 2001. We were incorporated under the laws of Delaware in February 1995. Our conjugated antibody program is based upon the antibody therapeutics program which originated in the late 1970s at Coulter Corporation, a recognized leader in the field of hematology. Upon our formation in February 1995, we acquired worldwide rights to Bexxar and related intellectual property, know-how and other assets from Coulter Corporation. In October 1997, Coulter Corporation was acquired by Beckman Instruments, Inc., and is now known as Beckman Coulter, Inc. ("Beckman Coulter"). In December 1998, we announced a joint collaboration agreement with SmithKline Beecham Corporation ("SB") granting them joint marketing rights in the United States and exclusive commercial rights internationally, except Japan, for Bexxar. In April 2000, we announced an amendment to our collaboration with SB for Bexxar. Under the amended agreement, effective June 30, 2000, we reacquired from SB exclusive rights outside of the United States for the development and commercialization of Bexxar. We continue to retain exclusive rights in Japan. In addition, we announced an expansion of our collaboration with SB to include a co-promotion agreement that will temporarily use our sales force for the United States promotion of certain SB oncology products. 2 6 RISK FACTORS You should carefully consider the following risks factors and all other information in this prospectus and incorporated by reference herein before purchasing our common stock. Investing in our common stock has a high degree of risk. The risks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties that are not yet identified or that we currently think are immaterial may also materially adversely affect our business. If any of the following risks actually occur, our business, financial condition or results of operations would likely suffer and the trading price of our common stock could decline. In addition to historical information, this prospectus contains forward-looking statements. These forward-looking statements involve certain risks and uncertainties that could cause actual results to differ materially from those in such forward-looking statements. WE MAY NOT BE ABLE TO DEVELOP PRODUCTS SUCCESSFULLY. Our product candidates are generally in early stages of development, with only one in clinical trials. The development of safe and effective therapies for the treatment of people with cancer or autoimmune diseases is highly uncertain and subject to numerous risks. Product candidates that may appear to be promising at early stages of development may not reach the market for a number of reasons. Product candidates may be found ineffective or cause harmful side effects during clinical trials, may take longer to progress through clinical trials than had been anticipated, may fail to receive necessary regulatory approvals, may prove impracticable to manufacture in commercial quantities at reasonable cost and with acceptable quality or may fail to achieve market acceptance. The results of initial preclinical and clinical testing of the products under development by us are not necessarily indicative of results that will be obtained from subsequent or more extensive preclinical studies and clinical testing. Our clinical data gathered to date with respect to Bexxar are from a Phase I/II dose escalation trial which was designed to develop and refine the therapeutic protocol, to determine the maximum tolerated dose of total body radiation and to assess the safety and efficacy profile of treatment with a radiolabeled antibody. Further, the data from this Phase I/II dose escalation trial were compiled from testing conducted at a single site and with a relatively small number of patients per NHL histology and disease stage. We have since completed a multi-center Phase II dosimetry clinical trial and a multi- center pivotal Phase III clinical trial. However, substantial additional development, clinical testing and investment may be required prior to seeking any regulatory approval for commercialization of this potential product. There can be no assurance that clinical trials of Bexxar or other product candidates under development will demonstrate the safety and efficacy of such products to the extent necessary to obtain regulatory approvals for the indications being studied, or at all. Companies in the pharmaceutical and biotechnology industries have suffered significant setbacks in advanced clinical trials, even after obtaining promising results in earlier trials. The failure to demonstrate adequately the safety and efficacy of Bexxar or any other therapeutic product under development could delay or prevent regulatory approval of the product and would have a material adverse effect on our business, financial condition and results of operations. Furthermore, the timing and completion of current and planned clinical trials of Bexxar, as well as clinical trials of other products, are dependent upon, among other factors, the rate at which patients are enrolled, which is a function of many factors, including the size of the patient population, the proximity of patients to the clinical sites, the number of clinical sites, the eligibility criteria for the study and the existence of competing clinical trials. There can be no assurance that delays in patient enrollment in clinical trials will not occur, and any such delays may result in increased costs, program delays or both, which could have a material adverse effect on our business, financial condition and results of operations. 3 7 ACCEPTANCE OF BEXXAR IN THE MARKETPLACE IS UNCERTAIN AND FAILURE TO ACHIEVE MARKET ACCEPTANCE WILL HARM OUR BUSINESS. Even if our product candidates are approved for marketing by the FDA and other regulatory authorities, there can be no assurance that our products will be commercially successful. If our most advanced product candidate, Bexxar, is approved, it would represent a significant departure from currently approved methods of treatment for NHL and would require the handling of radioactive materials. Accordingly, Bexxar may experience under-utilization by oncologists and hematologists who are unfamiliar with the application of Bexxar in the treatment of NHL. Further, oncologists and hematologists are not typically licensed to administer radioimmunotherapies such as Bexxar and will need to engage a nuclear medicine physician or receive specialty training to administer Bexxar. Nuclear Regulatory Commission regulations permit Bexxar to be administered on an outpatient basis in most cases as is currently contemplated by us. However, market acceptance could be affected adversely because some hospitals may be required to administer the therapeutic dose of Bexxar on an inpatient basis under applicable state or local or individual hospital regulations. As with any new drug, doctors may be inclined to continue to treat patients with conventional therapies, in this case chemotherapy and biologics. Market acceptance also could be affected by the availability of third-party reimbursement. Failure of Bexxar to achieve significant market acceptance would have a material adverse effect on our business, financial condition and results of operations. WE HAVE A LIMITED OPERATING HISTORY. Since our inception in 1995, we have been engaged in the development of drugs and related therapies for the treatment of people with cancer and autoimmune diseases. Our product candidates are generally in early stages of development, with only one in clinical trials. No revenues have been generated from product sales or product royalties; and there can be no assurance that products resulting from our research and development efforts will be available within a specific timeframe. No assurance can be given that our product development efforts, including clinical trials, will be successful, that required regulatory approvals for the indications being studied can be obtained, that our products can be manufactured at acceptable cost and with appropriate quality or that any approved products can be successfully marketed. OUR BUSINESS IS REGULATED BY THE GOVERNMENT AND WE CANNOT ASSURE YOU OF REGULATORY APPROVAL OF OUR PRODUCTS. All new drugs and biologics, including our products under development, are subject to extensive and rigorous regulation by the federal government, principally the FDA under the Food, Drug and Cosmetic Act and other laws including, in the case of biologics, the Public Health Services Act, in the case of radioactive products, the Nuclear Regulatory Commission; and by state and local governments. Such regulations govern, among other things, the development, testing, manufacture, labeling, storage, pre-market approval, criteria for release of patients relating to administration of radioactive materials, advertising, promotion, sale and distribution, and post-marketing surveillance of such products. If drug products are marketed abroad, they also are subject to extensive regulation by foreign governments. The regulatory process, which includes physicochemical studies, preclinical studies and clinical trials of each potential product, is lengthy, expensive and uncertain. Prior to commercial sale in the United States, most new drugs and biologics, including our products under development, must be approved by the FDA. Securing FDA marketing approvals often requires the submission of extensive, physicochemical preclinical and clinical data and supporting information to the FDA. Product approvals, if granted, can be withdrawn for failure to comply with regulatory requirements or upon the occurrence of unforeseen problems following initial marketing. Moreover, regulatory approvals for products such as new drugs and biologics, even if granted, may include significant limitations on the uses for which such products may be marketed. 4 8 There can be no assurance that we will be able to obtain necessary regulatory approvals on a timely basis, if at all, for any of our product candidates, and delays in receipt or failures to receive such approvals or failures to comply with existing or future regulatory requirements could have a material adverse effect on our business, financial condition and results of operations. Certain material manufacturing changes to new drugs and biologics also are subject to FDA review and approval. There can be no assurance that any approvals that are required, once obtained, will not be withdrawn or that compliance with other regulatory requirements can be maintained. Further, failure to comply with applicable FDA and other regulatory requirements can result in sanctions being imposed on us or the manufacturers of our products, including warning letters, fines, product recalls or seizures, injunctions, refusals to permit products to be imported into or exported out of the United States, refusals of the FDA to grant pre-market approval of drugs and biologics or to allow us to enter into government supply contracts, withdrawals of previously approved marketing applications and criminal prosecutions. Manufacturers of drugs and biologics also are required to comply with the applicable FDA Good Manufacturing Practices ("GMP") regulations, which include requirements relating to quality control and quality assurance as well as the corresponding maintenance of records and documentation. Manufacturing facilities are subject to inspection by the FDA, including unannounced inspection, and must be licensed before they can be used in commercial manufacturing of our products. We rely on Nordion for centralized radiolabeling of the Anti-B1 Antibody at Nordion's radiolabeling facility in Canada. To our knowledge, Nordion's radiolabeling facilities previously have not been licensed by the FDA as suitable for commercial manufacturing of a drug or biologic. There can be no assurance that we or our suppliers will be able to comply with the applicable GMP regulations and other FDA regulatory requirements. Such failure could have a material adverse effect on our business, financial condition and results of operations. In December 1998, we announced that we had been notified by the FDA that Bexxar met the criteria for Fast Track designation because one of the targeted indications is transformed low-grade NHL, a life-threatening disease, representing unmet medical need. However, significant uncertainty exists as to the extent to which Bexxar's Fast Track designation will result in priority review and approval. Further, the FDA retains considerable discretion to determine eligibility for a priority review and approval and is not bound by discussions that an applicant may have had with FDA staff. Accordingly, the FDA could employ such discretion to deny eligibility of Bexxar as a candidate for a priority review or to require additional clinical trials or other information before approving Bexxar. A determination that Bexxar is not eligible for a priority review or delays and additional expenses associated with generating a response to any such request for additional trials could have a material adverse effect on our business, financial condition and results of operations. WE HAVE LIMITED MANUFACTURING EXPERIENCE AND THUS RELY HEAVILY UPON CONTRACT SUPPLIERS AND MANUFACTURERS. We have no existing internal capacity or experience with respect to manufacturing products for large-scale clinical trials or commercial purposes. We rely upon BI Pharma KG for the production of Anti-B1 Antibody. We have entered into an agreement with BI Pharma KG for the production of bulk Anti-B1 Antibody and the filling of the individual product vials with Anti-B1 Antibody. We have contracted with BI Pharma KG and a third-party supplier for labeling and packaging services. These manufacturers have limited experience producing, labeling and packaging the Anti-B1 Antibody, and there can be no assurance that they will be able to produce our requirements in commercial quantities or with acceptable quality. We rely upon Nordion for radiolabeling of the Anti-B1 Antibody at Nordion's centralized radiolabeling facility. We have entered into an agreement with Nordion for supply of the radiolabeled Anti-B1 Antibody for both clinical trials and commercial sale. Given the eight-day half-life of the (131)I radioisotope, Nordion currently is producing radiolabeled Anti-B1 Antibody in a clinical scale facility sufficient to support on-going clinical trials. Nordion will transition the production of radiolabeled Anti-B1 Antibody to a commercial scale facility prior to anticipated FDA approval in support of potential product launch. However, there can be no assurance that Nordion will be able to successfully transition to the commercial scale facility and, if Bexxar is approved and is successful in the market, there can be no 5 9 assurance that Nordion's capacity to radiolabel antibodies will be sufficient to meet all of our commercial requirements. We are aware of only a limited number of manufacturers capable of producing the Anti-B1 Antibody in commercial quantities or radiolabeling the antibody with (131)I on a commercial scale. To establish and qualify a new facility to centrally radiolabel antibodies could take three years or longer. Further, radiolabeled antibody cannot be stockpiled against future shortages due to the eight-day half-life of the (131)I radioisotope. Accordingly, any change in our existing contractual relationships with, or interruption in supply from, our producer of unlabeled antibody or our radiolabeler could affect adversely our ability to complete our ongoing clinical trials and to market Bexxar, if approved. Any such change or interruption would have a material adverse effect on our business, financial condition and results of operations. Although we are evaluating additional sources of supply for production and radiolabeling of the Anti-B1 Antibody, no assurance can be given that such sources will be secured on commercially reasonable terms, on a timely basis, or at all. Prior to August 1997, we obtained Anti-B1 Antibody from an inventory produced by Beckman Coulter, and radiolabeling was performed by radiopharmacies at the individual clinical trial sites. In order to begin using Lonza Anti-B1 Antibody, BI Pharma KG Anti-B1 Antibody, and the centrally radiolabeled Anti-B1 Antibody from Nordion, we filed and the FDA cleared IND amendments to allow the use of these materials in clinical trials. We are collecting data from our clinical trials to be filed with the FDA to establish that Anti-B1 Antibody from these different sources and that Nordion radiolabeled and on-site radiolabeled Anti-B1 antibody are clinically comparable. However, there can be no assurance that we will be able to establish clinical comparability. A failure to establish clinical comparability could lead to a requirement that we conduct additional clinical trials, which would increase costs and potentially delay regulatory approval for Bexxar. We currently obtain the (131)I radioisotope from Nordion under purchase orders placed from time to time. Nordion intends to change its source of (131)I from tellurium-derived (131)I to fission-derived (131)I. We will need to obtain FDA approval of the fission-derived (131)I prior to its use in clinical trials or commercial supply. While fission-derived (131)I has been approved for human use in other applications, there can be no assurance that the fission-derived (131)I labeled Anti-B1 Antibody will be suitable for human use, and that clinical trials or commercial supply will not be delayed or disrupted if we are unable to obtain such FDA approval. Third-party manufacturers must comply with GMP regulations prescribed by the FDA and other standards prescribed by various federal, state and local regulatory agencies in the United States and any other relevant country. Failure to comply with these regulations could have a material adverse effect on our business, financial condition and results of operations. WE LACK MARKETING AND SALES EXPERIENCE AND THUS DEPEND UPON MARKETING PARTNERS. We intend to market and sell Bexxar in the United States through a direct sales force and in collaboration with SB. Internationally, we intend to directly market Bexxar in Europe upon approval to specialized centers and may seek partners as appropriate in specific countries. We currently do not possess the resources and experience necessary to commercialize any of our product candidates. We have hired approximately one-half of the direct sales force and marketing personnel necessary to launch Bexxar, however, our ability to market Bexxar, if approved, will be contingent upon recruitment, training and deployment of the remainder of our sales and marketing force as well as the performance of SB under the collaboration agreement. Development of an effective sales force will require significant financial resources and time. There can be no assurance that we will be able to establish such a sales force in a timely or cost effective manner, if at all, or that such a sales force will be capable of generating demand for Bexxar or other product candidates. Failure to establish such a sales force and marketing capability could have a material adverse effect on our business, financial condition and results of operations. 6 10 WE OPERATE IN A HIGHLY COMPETITIVE MARKET AND OUR COMPETITORS MAY DEVELOP ALTERNATIVE THERAPIES. The pharmaceutical and biotechnology industries are intensely competitive. Any product candidate developed by us would compete with existing drugs and therapies. There are many pharmaceutical companies, biotechnology companies, public and private universities and research organizations actively engaged in research and development of products for the treatment of people with cancer and autoimmune disease. Many of these organizations have financial, technical, manufacturing and marketing resources greater than those of ours. Several of them may have developed or are developing therapies that could be used for treatment of the same diseases targeted by us. If a competing company were to develop or acquire rights to a more efficacious or safer therapy for treatment of the same diseases targeted by us, or one which offers significantly lower costs of treatment, our business, financial condition and results of operations could be materially adversely affected. We believe that our product development programs will be subject to significant competition from companies utilizing alternative technologies as well as to increasing competition from companies that develop and apply technologies similar to our technologies. Other companies may succeed in developing products earlier than us, obtaining approvals for such products from the FDA more rapidly than us or developing products that are safer and more effective than those under development or proposed to be developed by us. There can be no assurance that research and development by others will not render our technology or product candidates obsolete or non-competitive or result in treatments superior to any therapy developed by us, or that any therapy developed by us will be preferred to any existing or newly developed technologies. WE DEPEND UPON PROPRIETARY TECHNOLOGY; THE STATUS OF PATENTS AND PROPRIETARY TECHNOLOGY IS UNCERTAIN. The pharmaceutical and biotechnology fields are characterized by a large number of patent filings. A substantial number of patents have already been issued to other pharmaceutical and biotechnology companies. Research has been conducted for many years in the monoclonal antibody field by pharmaceutical and biotechnology companies and other organizations. Competitors may have filed applications for or have been issued patents and may obtain additional patents and proprietary rights related to products or processes competitive with or similar to those of our company. In some jurisdictions, including the United States, patent applications are maintained in secrecy for a period after filing. Publication of discoveries in the scientific or patent literature tends to lag behind actual discoveries and the filing of related patent applications. We may not be aware of all of the patents potentially adverse to our interests that may have been issued to other companies, research or academic institutions, or others. No assurance can be given that such patents do not exist, have not been filed, or could not be filed or issued, which contain claims relating to our technology, products or processes. If patents have been or are issued to others containing preclusive or conflicting claims and such claims are determined ultimately to be valid, we may be required to obtain licenses to one or more of such patents or to develop or obtain alternative technology. We are aware of various patents that have been issued to others that pertain to a portion of our prospective business; however, we believe that we do not infringe any patents that ultimately would be determined to be valid. There can be no assurance that patents do not exist in the United States or in foreign countries or that patents will not be issued to third parties that contain preclusive or conflicting claims with respect to Bexxar or any of our other product candidates or programs. Commercialization of monoclonal antibody-based products may require licensing and/or cross-licensing of one or more patents with other organizations in the field. There can be no assurance that the licenses that might be required for our processes or products would be available on commercially acceptable terms, if at all. Our breach of an existing license or failure to obtain a license to technology required to commercialize our product candidates may have a material adverse effect on our business, financial condition and results of operations. Litigation, which could result in substantial costs to us, may also be necessary to enforce any patents issued us or to determine the scope and validity of third-party proprietary rights. If our competitors prepare and file patent applications in the United States that claim technology also claimed by us, we may have to participate in interference proceedings declared by the United States Patent and Trademark Office to determine priority of invention, which could result in substantial cost to 7 11 us, even if the eventual outcome is favorable to us. An adverse outcome in court or administrative agency proceedings could subject us to significant liabilities to third parties and require us to license disputed rights from third parties or to cease using such technology. We also rely on trade secrets to protect our technology, especially where patent protection is not believed to be appropriate or obtainable. We protect our proprietary technology and processes, in part, by confidentiality agreements with our employees, consultants, advisory board members, collaborators and certain contractors. There can be no assurance that these agreements will not be breached, that we would have adequate remedies for any breach, or that our trade secrets or those of our collaborators or contractors will not otherwise become known or be discovered independently by competitors. Patents issued and patent applications filed internationally relating to biologics are numerous and there can be no assurance that current and potential competitors and other third parties have not filed or in the future will not file applications for, or have not received or in the future will not receive, patents or obtain additional proprietary rights relating to products or processes used or proposed to be used by us. Moreover, statutory differences in patentable subject matter may limit the protection we can obtain on some of our inventions in certain jurisdictions. For example, methods of treating humans are not patentable in many countries outside of the United States. These and/or other issues may prevent us from obtaining patent protection in certain markets which would have a material adverse effect on our business, financial condition and results of operations. WE WILL NEED ADDITIONAL CAPITAL AND OUR ABILITY TO FIND ADDITIONAL FUNDING IS UNCERTAIN. Our operations to date have consumed substantial and increasing amounts of cash. The negative cash flow from operations is expected to continue and to accelerate in the next several years. The development of our technology and potential products will require a commitment of substantial funds. We expect that our existing capital resources will be adequate to satisfy the requirements of our current and planned operations through 2001. However, the rate at which we expend our resources is variable, may be accelerated and will depend on many factors, including the scope and results of preclinical studies and clinical trials, the cost, timing and outcome of regulatory approvals, continued progress of our research and development of product candidates, the timing and cost of establishment or procurement of requisite production radiolabeling and other manufacturing capacities, the cost involved in preparing, filing, prosecuting, maintaining, defending and enforcing patent claims, the expenses of establishing a sales and marketing force, the acquisition of technology licenses, the status of competitive products and the availability of other financing. We may need to raise substantial additional capital to fund our operations and, if needed, we intend to seek such additional funding through public or private equity or debt financings, as well as through collaborative arrangements. There can be no assurance that such additional funding will be available on acceptable terms, if at all. If additional funds are raised by issuing equity securities, substantial dilution to stockholders may result. If adequate funds are not available, we may be required to delay, reduce the scope of, or eliminate one or more of our research and development programs or obtain funds through arrangements with collaborative partners or others that may require us to relinquish rights to certain of our technologies, product candidates or products that we would otherwise seek to develop or commercialize. WE HAVE A HISTORY OF LOSSES AND ANTICIPATE FUTURE LOSSES. We have a limited history of operations and have experienced significant losses since inception. As of June 30, 2000, our accumulated deficit was approximately $120.9 million. We expect to incur significant additional operating losses over the next several years and expect cumulative losses to increase substantially due to expanded research and development efforts, preclinical studies and clinical trials and development of manufacturing, marketing and sales capabilities. We expect that losses will fluctuate from quarter to quarter and that such fluctuations may be substantial. All of our product candidates are in development in preclinical studies and clinical trials, and no revenues have been generated from product sales. To achieve and sustain profitable operations, we, alone or with others, must develop successfully, 8 12 obtain regulatory approval for, manufacture, introduce, market and sell our products. The time frame necessary to achieve market success is long and uncertain. Product revenues resulting from our research and development efforts will not occur until commercial availability of such product. There can be no assurance that we will ever generate sufficient product revenues to become profitable or to sustain profitability. WE DEPEND ON KEY PERSONNEL. We are dependent upon a limited number of key management and technical personnel. The loss of the services of one or more of such key employees could have a material adverse effect on our business, financial condition and results of operations. In addition, our success will be dependent upon our ability to attract and retain additional highly qualified sales, management, manufacturing and research and development personnel. We face intense competition in our recruiting activities, and there can be no assurance that we will be able to attract and/or retain qualified personnel. WE MAY BE EXPOSED TO PRODUCT LIABILITY. The manufacture and sale of human therapeutic products involve an inherent risk of product liability claims and associated adverse publicity. We have only limited product liability insurance for clinical trials and no commercial product liability insurance. There can be no assurance that we will be able to maintain existing insurance or obtain additional product liability insurance on acceptable terms or with adequate coverage against potential liabilities. Such insurance is expensive, may be difficult to obtain and may not be available in the future on acceptable terms, if at all. An inability to obtain sufficient insurance coverage on reasonable terms or to otherwise protect against potential product liability claims brought against us in excess of our insurance coverage, if any, or a product recall could have a material adverse effect upon our business, financial condition and results of operations. WE ARE SUBJECT TO UNCERTAINTIES REGARDING HEALTHCARE REIMBURSEMENT AND REFORM. Political, economic and regulatory influences are subjecting the health care industry in the United States to fundamental change. Initiatives to reduce the federal deficit and to reform health care delivery are increasing cost-containment efforts. We anticipate that Congress, state legislatures and the private sector will continue to review and assess alternative benefits, controls on health care spending through limitations on the growth of private health insurance premiums and Medicare and Medicaid spending, the creation of large insurance purchasing groups, price controls on pharmaceuticals and other fundamental changes to the health care delivery system. Any such proposed or actual changes could cause us to limit or eliminate spending on development projects and affect our ultimate profitability. Legislative debate is expected to continue in the future, and market forces are expected to drive reductions of health care costs. We cannot predict what impact the adoption of any federal or state health care reform measures or future private sector reforms may have on our business. In both domestic and foreign markets, sales of our proposed products will depend in part upon the availability of reimbursement from third-party payors, such as government health administration authorities, managed care providers, private health insurers and other organizations. Third-party payors are increasingly challenging the price and cost effectiveness of medical products and services. Significant uncertainty exists as to the reimbursement status of newly approved health care products. Bexxar, as potentially the first radioimmunotherapy for cancer, faces particular uncertainties due to the absence of a comparable, approved therapy to serve as a model for pricing and reimbursement decisions. Further, if Bexxar is not administered in most cases on an outpatient basis, as is contemplated currently by us, the projected cost of the therapy will be higher than anticipated. In addition, there can be no assurance that products can be manufactured on a commercial scale for a cost that will enable us to price our products within reimbursable rates. Consequently, there can be no assurance that our product candidates will be considered cost effective or that adequate third-party reimbursement will be available to enable us to maintain price levels sufficient to realize an appropriate return on our investment in product development. If adequate coverage and reimbursement rates are not provided by the government and third-party payors 9 13 for our products, the market acceptance of these products could be adversely affected, which could have a material adverse effect on our business, financial condition and results of operations. WE USE HAZARDOUS AND RADIOACTIVE MATERIALS. The manufacturing and administration of Bexxar requires the handling, use and disposal of (131)I, a radioactive isotope of iodine. These activities must comply with various state and federal regulations. Violations of these regulations could delay significantly completion of clinical trials and commercialization of Bexxar. For our ongoing clinical trials and for commercial-scale production, we rely on Nordion to radiolabel the Anti-B1 Antibody with (131)I at a single location in Canada. Violations of safety regulations could occur with this manufacturer, and, therefore, there is a risk of accidental contamination or injury. In the event of any such noncompliance or accident, the supply of radiolabeled Anti-B1 Antibody for use in clinical trials or commercially could be interrupted, which could have a material adverse effect on our business, financial condition and results of operations. We also use hazardous chemicals and radioactive compounds in our ongoing research activities. We could be held liable for any damages that result from such an accident, contamination or injury from the handling and disposal of these materials, as well as for unexpected remedial costs and penalties that may result from any violation of applicable regulations, which could result in a material adverse effect on our business, financial condition and results of operations. In addition, we may incur substantial costs to comply with environmental regulations. THE PRICE OF OUR COMMON STOCK MAY BE VOLATILE. The securities markets have from time to time experienced significant price and volume fluctuations that are unrelated to the operating performance of particular companies. The market prices of the common stock of many publicly held biotechnology and pharmaceutical companies have in the past been, and can in the future be expected to be, especially volatile. Announcements of technological innovations or new products by us or our competitors, release of reports by securities analysts, sales of stock by large holders, developments or disputes concerning patents or proprietary rights, regulatory developments, changes in regulatory or medical reimbursement policies, economic and other external factors, as well as period-to-period fluctuations in our financial results, may have a significant and adverse impact on the market price of our common stock. SUBSTANTIAL SALES OF SHARES OF OUR COMMON STOCK ELIGIBLE FOR FUTURE SALE COULD CAUSE OUR STOCK PRICE TO FALL. Sales of shares of our common stock (including shares issued upon the exercise of outstanding options) in the public market could adversely affect the market price of our common stock. Such sales also might make it more difficult for us to sell equity securities or equity-related securities in the future at a time and price that we deem appropriate. ADVERSE IMPACT OF POSSIBLE ISSUANCES OF PREFERRED STOCK; ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER AND BYLAW PROVISIONS Our board of directors has authority to issue up to 3,000,000 shares of preferred stock and to fix the price, rights, preferences, privileges and restrictions, including voting rights, of those shares without any further vote or action by the stockholders. The rights of the holders of our common stock will be subject to, and may be adversely affected by, the rights of the holders of any preferred stock that may be issued in the future. The issuance of preferred stock could affect adversely the voting power of holders of our common stock and the likelihood that such holders will receive dividend payments and payments upon liquidation. Additionally, the issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of Coulter Pharmaceutical, may discourage bids for our common stock at a premium over the market price of such common stock and may affect adversely the market price of and the voting and other rights of the holders of our common stock. In addition, our bylaws provide that 10 14 special meetings of stockholders may be called only by the Chairman of the Board of Directors, the Chief Executive Officer or our Board of Directors pursuant to a resolution approved by a majority of our Board of Directors. In July 1997, we adopted a Share Purchase Rights Plan, commonly referred to as a "poison pill." In addition, we are subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, which prohibits us from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. These provisions, along with certain provisions of California law that may be applicable to us, could have the effect of discouraging certain attempts to acquire us which could deprive our stockholders of the opportunity to sell their shares of our common stock at prices higher than prevailing market prices. 11 15 CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS Some of the statements in this prospectus and the documents incorporated by reference are forward-looking statements. These statements are based on our current expectations, assumptions, estimates and projections about our business and our industry, and involve known and unknown risks, uncertainties and other factors that may cause our or our industry's results, levels of activity, performance or achievement to be materially different from any future results, levels of activity, performance or achievements expressed or implied in or contemplated by the forward-looking statements. Words such as "believe," "anticipate," "expect," "intend," "plan," "will," "may," "should," "estimate," "predict," "potential," "continue," or the negative of such terms or other similar expressions, identify forward-looking statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. Our actual results could differ materially from those anticipated in such forward-looking statements as a result of several factors more fully described under the caption "Risk Factors" and in the documents incorporated by reference. The forward-looking statements made in this prospectus relate only to events as of the date on which the statements are made. We do not intend to update publicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future. WHERE YOU CAN FIND MORE INFORMATION AVAILABLE INFORMATION You should rely only on the information provided or incorporated by reference in this prospectus. We have authorized no one to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of the document. We have filed with the SEC a registration statement on Form S-3 to register the common stock offered by this prospectus. However, this prospectus does not contain all of the information contained in the registration statement and the exhibits and schedules to the registration statement. We strongly encourage you to carefully read the registration statement and the exhibits and schedules to the registration statement. We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's public reference rooms in Washington, DC, New York, New York and Chicago, Illinois. You can request copies of these documents by contacting the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from the SEC's website at www.sec.gov. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" the information contained in documents that we file with them, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated by reference which we filed with the SEC prior to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed 12 16 below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934. The following documents filed with the SEC are incorporated by reference in this prospectus: 1. Our Annual Report on Form 10-K for the fiscal year ended December 31, 1999, filed on March 27, 2000, including all material incorporated by reference therein and any amendments or reports filed for the purpose of updating any of such reports, statements or descriptions; 2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2000, filed on May 16, 2000, including all material incorporated by reference therein and any amendments or reports filed for the purpose of updating any of such reports, statements or descriptions; 3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2000, filed on August 11, 2000, including all material incorporated by reference therein and any amendments or reports filed for the purpose of updating any of such reports, statements or descriptions; 4. The description of our common stock set forth in our Registration Statement on Form 8-A, filed on December 20, 1996, including any amendments or reports filed for the purpose of updating any of such reports, statements or descriptions; and 5. The Proxy Statement for our 2000 Annual Meeting of Stockholders, including any amendments or reports filed for the purpose of updating any of such reports, statements or descriptions. We will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents. You should direct any requests for documents to Coulter Pharmaceutical, Inc., 600 Gateway Boulevard, South San Francisco, California 94080, telephone: (650) 553-2000. USE OF PROCEEDS The proceeds from the sale of the common stock offered pursuant to this prospectus are solely for the account of the selling stockholders. We will not receive any proceeds from the sale of these shares of common stock. 13 17 SELLING STOCKHOLDERS In August 2000, we agreed to sell 1,655,000 shares of our common stock at a price of $21.625 per share pursuant to (i) a Stock Purchase Agreement, dated August 11, 2000, by and among us and the Purchasers named therein and (ii) a Registration Rights Agreement, dated August 11, 2000, by and among us and the Purchasers named therein. In connection with this sale, we agreed to file a registration statement with the SEC covering the shares issued to each selling stockholder and agreed to indemnify each selling stockholder against claims made against them arising out of, among other things, statements made in this registration statement. We have agreed to cause this registration statement to remain effective until (a) all the common stock has been re-sold or (b) two years after August 29, 2000, whichever is earlier. The following table provides certain information with respect to shares of common stock held and to be offered under this prospectus from time to time by each selling stockholder. Because the selling stockholders may sell all or part of their common stock pursuant to this prospectus, and this offering is not being underwritten on a firm commitment basis, only an estimate can be given as to the number and percentage of shares of common stock that will be held by each selling stockholder upon termination of this offering. We are unaware of any material relationship between any of the selling stockholders and us in the past three years other than as a result of the ownership of the shares of common stock.
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED PRIOR OWNED AFTER TO OFFERING NUMBER OFFERING(1) ---------------------- ---------------------- NUMBER OF NUMBER OF SHARES NUMBER OF NAME SHARES PERCENT(2) BEING OFFERED SHARES PERCENT(2) ---- --------- ---------- ---------------- --------- ---------- Alta BioPharma, LP..................... 287,173 1.68 % 287,173 0 * Four Partners.......................... 231,000 1.35 % 231,000 0 * Three Arch Partners III, L.P........... 231,000 1.35 % 219,219 0 * Coulter Pharmaceuticals Chase Partners (Alto Bio), LLC...................... 164,003 * 164,003 0 * Baker/Tisch Investments LLC............ 92,400 * 92,400 0 * Baker Bros. Investments................ 92,400 * 92,400 0 * Veritas SG Investment Trust GmbH....... 80,000 * 80,000 0 * Narragansett Offshore Ltd.............. 57,000 * 57,000 0 * The Timken Living Trust UAD 9/14/99.... 50,000 * 50,000 0 * Commonfund Group....................... 49,000 * 49,000 0 * FBB Associates......................... 46,200 * 46,200 0 * Narragansett I LP...................... 43,000 * 43,000 0 * General Board of Church of Nazarene.... 21,000 * 21,000 0 * Marcuard Cook & Cie, SA................ 20,000 * 20,000 0 * International Trust & Engine Corp. -- Salaried.................... 15,600 * 15,600 0 * St. Joseph Health System............... 15,500 * 15,500 0 * Alta Embarcadero BioPharma, LLC........ 10,824 * 10,824 0 * International Truck & Engine Corp. -- Hourly...................... 10,500 * 10,500 0 * Meijer, Inc. Pension Plan.............. 10,300 * 10,300 0 * Tremont Temple Baptist Church General Trust Fund........................... 10,000 * 10,000 0 * The University of Mississippi Foundation........................... 8,200 * 8,200 0 * Wheaton College........................ 8,200 * 8,200 0 *
14 18
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED PRIOR OWNED AFTER TO OFFERING NUMBER OFFERING(1) ---------------------- ---------------------- NUMBER OF NUMBER OF SHARES NUMBER OF NAME SHARES PERCENT(2) BEING OFFERED SHARES PERCENT(2) ---- --------- ---------- ---------------- --------- ---------- International Truck & Engine Corp. -- VEBA........................ 8,100 * 8,100 0 * MJH Foundation......................... 6,800 * 6,800 0 * Bryan N. Danforth #2................... 6,000 * 6,800 0 * The Evangelical Covenant Church Pension Fund................................. 4,900 * 4,900 0 * Trustees of Boston College............. 4,500 * 4,500 0 * James B. and Bruce R. Murray........... 4,000 * 4,000 0 * Baillie Lumber Co. Inc. Profit Share Plan................................. 3,800 * 3,800 0 * University of Virginia................. 3,800 * 3,800 0 * Society for the Preservation of New England Antiquities.................. 3,700 * 3,700 0 * City of Springfield.................... 3,600 * 3,600 0 * 1101 Foundation........................ 3,300 * 3,300 0 * Frederick Meijer Charitable Trust...... 3,300 * 3,300 0 * Meijer Foundation...................... 3,200 * 3,200 0 * The Berkeley Retirement Home........... 3,000 * 3,000 0 * Tremont Temple Bobbie Currie Sunday School Fund.......................... 3,000 * 3,000 0 * Presbyterian Homes Family Services, Inc.................................. 2,800 * 2,800 0 * Ned's Island Investment Corp........... 2,700 * 2,700 0 * Michigan Botanic Garden Foundation..... 2,300 * 2,300 0 * John Sullivan IRA...................... 2,200 * 2,200 0 * Charlottesville, VA Retirement System............................... 2,100 * 2,100 0 * Herbert G. Roskind, Jr. IRA............ 2,100 * 2,100 0 * Dows -- First Calvary Baptist Church... 2,000 * 2,000 0 * ATP Tour Inc. Player Pension Plan...... 2,000 * 2,000 0 * Bridgeport Hospital Pension............ 1,700 * 1,700 0 * Bridgewater College.................... 1,700 * 1,700 0 * The University of Mississippi Medical Center............................... 1,700 * 1,700 0 * Buzz Johnson, IRA...................... 1,600 * 1,600 0 * Republic National Bank INSIGHT Funds... 1,500 * 1,500 0 * Richard J. Tavilla..................... 1,500 * 1,500 0 * Richard M. Drury IRA................... 1,400 * 1,400 0 * Kirk Ware.............................. 1,200 * 1,200 0 * The University of Mississippi.......... 1,100 * 1,100 0 * Dr. G. Timothy Johnson M.D., P.C., MPPP................................. 1,000 * 1,000 0 * Joseph F. and Marlene M. Bonasera...... 1,000 * 1,000 0 * Bridgeport Hospital Foundation......... 900 * 900 0 * Frederick G.H. Meijer Trust............ 900 * 900 0 * Jeffrey S. Meyer....................... 700 * 700 0 * Lena E.S. Meijer Trust................. 400 * 400 0 * Joan P. Drury IRA...................... 100 * 100 0 *
15 19
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED PRIOR OWNED AFTER TO OFFERING NUMBER OFFERING(1) ---------------------- ---------------------- NUMBER OF NUMBER OF SHARES NUMBER OF NAME SHARES PERCENT(2) BEING OFFERED SHARES PERCENT(2) ---- --------- ---------- ---------------- --------- ---------- Laura C. Roskind....................... 100 * 100 0 * ------------------------------------------------------------------ TOTAL................................ 1,655,000
- ------------------------- * Less than one percent (1) Assumes the sale of all shares offered hereby. (2) Percentage of ownership is based on 17,112,832 shares of common stock outstanding on August 25, 2000. 16 20 PLAN OF DISTRIBUTION We are registering the shares of our common stock offered by the selling stockholders pursuant to contractual registration rights contained in the Registration Rights Agreement. The selling stockholders may sell their shares on the Nasdaq National Market, in the over-the-counter market, in private transactions, through options, by pledge to secure debts and other obligations or in a combination of such methods of sale. The selling stockholders may sell their shares at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated or at fixed prices. For their shares, the selling stockholders will receive the purchase price of the shares sold less any agents' commissions or underwriters' discounts and other related expenses. If the selling stockholders sell shares to or through brokers or dealers, they may pay the brokers or dealers compensation in the form of discounts, concessions or commissions. We will not receive any proceeds from the sale of shares by the selling stockholders. The selling stockholders and any persons who participate in the sale of the shares may be deemed to be "underwriters" as defined in the Securities Act of 1933, and any discounts, commissions or concessions received by them and any provided pursuant to the sale of shares by them might be deemed underwriting discounts and commissions under the Securities Act. Any shares covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under rule 144 rather than under the terms of this prospectus. The selling stockholders may transfer, will or gift such shares by other means not described in this prospectus. In order to comply with the securities laws of certain states, if applicable, the common stock may be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with. Under applicable rules and regulations under the Securities Exchange Act of 1934, any person engaged in a distribution of the common stock may not simultaneously engage in market-making activities with respect to the common stock for nine business days prior to the start of the distribution. In addition, each selling stockholder and any other person participating in a distribution will be subject to applicable provisions of the Exchange Act which may limit the timing of purchases and sales of common stock by the selling stockholders or any other person. These factors may affect the marketability of the common stock and the ability of brokers or dealers to engage in market-making activities. We are not paying any underwriting commissions or discounts in this offering. We will, however, pay for the expenses incurred in this offering. We have agreed to indemnify the selling stockholders and certain other persons against certain liabilities, including liabilities under the Securities Act. LEGAL MATTERS The validity of the shares of common stock offered hereby will be passed upon by Cooley Godward LLP. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 1999, as set forth in their report, which is incorporated in this prospectus by reference. Our financial statements are incorporated by reference in reliance upon Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. 17 21 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The registrant will bear no expenses in connection with any sale or other distribution by the selling stockholders of the shares being registered other than the expenses of preparation and distribution of this registration statement and the prospectus included in this registration statement. The extent of these expenses is set forth in the following table. All of the amounts shown are estimates except the SEC registration fee. SEC registration fee........................................ $ 10,425 Nasdaq National Market listing fee.......................... $ 17,500 Legal fees and expenses..................................... $ 20,000 Accounting fees and expenses................................ $ 12,000 Printing expenses........................................... $ 10,000 Miscellaneous expenses...................................... $ 5,000 -------- Total.................................................. $ 74,925 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under Section 145 of the Delaware General Corporation Law, the Registrant has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended ("Securities Act"). The Registrant's Bylaws also provide that the Registrant will indemnify its directors and executive officers and may indemnify its other officers, employees and other agents to the fullest extent permitted by Delaware law. The Registrant's Restated Certificate of Incorporation ("Restated Certificate") provides that the liability of its directors for monetary damages shall be eliminated to the fullest extent permissible under Delaware law. Pursuant to Delaware law, this includes elimination of liability for monetary damages for breach of the directors' fiduciary duty of care to the Registrant and its stockholders. These provisions do not eliminate the directors' duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to the Registrant, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for any transaction from which the director derived an improper personal benefit, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not effect a director's responsibilities under any other laws, such as federal securities laws or state or federal environmental laws. The Registrant has entered into agreements with its directors and officers that require the Registrant to indemnify such persons to the fullest extent authorized or permitted by the provisions of the Restated Certificate and Delaware law against expenses, judgements, fines, settlements and other amounts actually and responsibly incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director, officer, employee or other agent of the Registrant or any of its affiliated enterprises. Delaware law permits such indemnification, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interest of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. At present, there is no pending litigation or proceeding involving a director or officer of the Registrant as to which indemnification is being sought nor is the Registrant aware of any threatened litigation that may result in claims for indemnification by any officer or director. II-1 22 ITEM 16. EXHIBITS. EXHIBITS. 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Reference is made to Exhibits 3.1 and 3.2 4.2* Specimen stock certificate. 4.3 Stock Purchase Agreement, dated August 11, 2000, between the Registrant and the Purchasers of common stock named therein. 4.4 Registration Rights Agreement, dated August 11, 2000, between the Registrant and the Purchasers of common stock named therein. 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1) 24.1 Power of Attorney (see page II-3)
- ------------------------- * Filed as an exhibit to the Registrant's Registration Statement on Form S-1 (No. 333-17661) or amendments thereto and incorporated reference. 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 to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to that information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities it offers, and the offering of the 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 this offering. 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 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 the securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. 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 this form of indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against these liabilities (other than the payment by the registrant of expenses II-2 23 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 a 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 this issue. II-3 24 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of South San Francisco, State of California, on August 30, 2000. COULTER PHARMACEUTICAL, INC. By: /s/ MICHAEL F. BIGHAM ------------------------------------ Michael F. Bigham President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael F. Bigham and William G. Harris, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ MICHAEL F. BIGHAM President, Chief Executive August 30, 2000 - -------------------------------------------------------- Officer and Director (Michael F. Bigham) (Principal Executive Officer) /s/ WILLIAM G. HARRIS Sr. Vice President and Chief August 30, 2000 - -------------------------------------------------------- Financial Officer (William G. Harris) (Principal Financial and Accounting Officer) /s/ BRIAN ATWOOD Director August 30, 2000 - -------------------------------------------------------- (Brian Atwood) /s/ JOSEPH R. COULTER, III Director August 30, 2000 - -------------------------------------------------------- (Joseph R. Coulter, III) /s/ DONALD L. LUCAS Director August 30, 2000 - -------------------------------------------------------- (Donald L. Lucas) /s/ ROBERT MOMSEN Director August 30, 2000 - -------------------------------------------------------- (Robert Momsen)
II-4 25
SIGNATURE TITLE DATE --------- ----- ---- /s/ ARNOLD ORONSKY Director August 30, 2000 - -------------------------------------------------------- (Arnold Oronsky) /s/ SAMUEL R. SAKS, M.D. Director August 30, 2000 - -------------------------------------------------------- (Samuel R. Saks, M.D.) /s/ GEORGE J. SELLA, JR. Director August 30, 2000 - -------------------------------------------------------- (George J. Sella, Jr.)
II-5 26 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Reference is made to Exhibits 3.1 and 3.2 4.2* Specimen stock certificate. 4.3 Stock Purchase Agreement, dated August 11, 2000, between the Registrant and the Purchasers of common stock named therein. 4.4 Registration Rights Agreement, dated August 11, 2000, between the Registrant and the Purchasers of common stock named therein. 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1) 24.1 Power of Attorney (see page II-3)
- ------------------------- * Filed as an exhibit to the Registrant's Registration Statement on Form S-1 (No. 333-17661) or amendments thereto and incorporated reference. EX-4.3 2 f65205ex4-3.txt EXHIBIT 4.3 1 EXHIBIT 4.3 STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT is dated as of the 11th day of August, 2000 by and between Coulter Pharmaceutical, Inc., a Delaware corporation with its principal office at 600 Gateway Blvd., South San Francisco, CA 94080 (the "Company"), and the several purchasers named in the attached Exhibit A (individually, a "Purchaser" and collectively, the "Purchasers"). WHEREAS, the Company desires to issue and sell to the Purchasers an aggregate of up to 1,655,000 shares (the "Shares") of the authorized but unissued shares of common stock, $.001 par value per share, of the Company (the "Common Stock"); and WHEREAS, the Purchasers, severally, wish to purchase the Shares on the terms and subject to the conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: (a) "AFFILIATE" of a party means any corporation or other business entity controlled by, controlling or under common control with such party. For this purpose "control" shall mean direct or indirect beneficial ownership of fifty percent (50%) or more of the voting or income interest in such corporation or other business entity. (b) "CLOSING DATE" means the date of the Closing. (c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder. (d) "REGISTRATION RIGHTS AGREEMENT" shall mean that certain Registration Rights Agreement, dated as of the date hereof, among the Company and the Purchasers. (e) "MAJORITY PURCHASERS" shall mean Purchasers which, at any given time, hold greater than fifty percent (50%) of the voting power of the outstanding Shares. (f) "SEC" shall mean the Securities and Exchange Commission. (g) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder. 2. PURCHASE AND SALE OF SHARES. 2.1 PURCHASE AND SALE. Subject to and upon the terms and conditions set forth in this Agreement, the Company agrees to issue and sell to each Purchaser, and each Purchaser, severally, hereby agrees to purchase from the Company, at the Closing, the number of shares of Common Stock set forth opposite the name of such Purchaser under the heading "Number of Shares to be Purchased" on Exhibit A hereto, at a purchase price of $ 21.625 per 1. 2 share. The total purchase price payable by each Purchaser for the number of shares of Common Stock that such Purchaser is hereby agreeing to purchase is set forth opposite the name of such Purchaser under the heading "Purchase Price" on Exhibit A hereto. The aggregate purchase price payable by the Purchasers to the Company for all of the Shares shall be $35,789,375. 2.2 CLOSING. The closing of the transactions contemplated under this Agreement (the "Closing") shall take place at the offices of Cooley Godward LLP, Palo Alto, California, on August 28, 2000 or at such other location, date and time as may be agreed upon between the Purchasers and the Company. At the Closing, the Company shall deliver to each Purchaser a single stock certificate, registered in the name of such Purchaser, representing the number of shares of Common Stock purchased by such Purchaser, against payment of the purchase price therefor by wire transfer of immediately available funds to such account or accounts as the Company shall designate in writing. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to each of the Purchasers as follows: 3.1 INCORPORATION. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect upon the Company. The Company has all requisite corporate power and authority to carry on its business as now conducted. 3.2 CAPITALIZATION. The authorized capital stock of the Company consists of (i) 30,000,000 shares of Common Stock, of which 17,112,832 shares are outstanding on the date hereof and (ii) 3,000,000 shares of preferred stock, of which no shares are outstanding on the date hereof. Except as described in the SEC Documents, there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements, arrangements or commitments of any character obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any shares of the capital stock of the Company or other equity interests in the Company or any securities convertible into or exchangeable for such shares of capital stock or other equity interests, and there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests. 3.3 AUTHORIZATION. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein and therein has been taken. When executed and delivered by the Company, each of this Agreement and the Registration Rights Agreement shall constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. The Company has all requisite corporate power to enter into this Agreement and the 2. 3 Registration Rights Agreement and to carry out and perform its obligations under the terms of this Agreement, and the Registration Rights Agreement. 3.4 VALID ISSUANCE OF THE SHARES. The Shares being purchased by the Purchasers hereunder will, upon issuance pursuant to the terms hereof, be duly authorized and validly issued, fully paid and nonassessable. 3.5 FINANCIAL STATEMENTS. The Company has furnished to each Purchaser its audited Statements of Income, Stockholders' Equity and Cash Flows for the fiscal year ended December 31, 1999, its audited Balance Sheet as of December 31, 1999, its unaudited Statements of Income, Stockholders' Equity and Cash Flows for the six month period ending June 30, 2000, and its unaudited Balance Sheet as of June 30, 2000. All such financial statements are hereinafter referred to collectively as the "Financial Statements". The Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved, and fairly present, in all material respects, the financial position of the Company and the results of its operations as of the date and for the periods indicated thereon, except that the unaudited financial statements may not be in accordance with generally accepted accounting principles because of the absence of footnotes normally contained therein and are subject to normal year-end audit adjustments which, individually, and in the aggregate, will not be material. Since June 30, 2000, to the Company's knowledge, there has been no material adverse change (actual or threatened) in the assets, liabilities (contingent or other), affairs, operations, prospects or condition (financial or other) of the Company. 3.6 SEC DOCUMENTS. The Company has furnished to each Purchaser, a true and complete copy of the Company's Annual Report on Form 10-K for the year ended December 31, 1999, the Company's Quarterly Report on Form 10-Q for the six months ended June 30, 2000, and any other statement, report, registration statement (other than registration statements on Form S-8) or definitive proxy statement filed by the Company with the SEC during the period commencing June 30, 2000 and ending on the date hereof. The Company will, promptly upon the filing thereof, also furnish to each Purchaser all statements, reports (including, without limitation, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K), registration statements and definitive proxy statements filed by the Company with the SEC during the period commencing on the date hereof and ending on the Closing Date (all such materials required to be furnished to each Purchaser pursuant to this sentence or pursuant to the next preceding sentence of this Section 3.6 being called, collectively, the "SEC Documents"). As of their respective filing dates, the SEC Documents complied or will comply in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and none of the SEC Documents contained or will contain any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, as of their respective filing dates, except to the extent corrected by a subsequently filed SEC Document. 3.7 CONSENTS. All consents, approvals, orders and authorizations required on the part of the Company in connection with the execution, delivery or performance of this 3. 4 Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein and therein have been obtained and will be effective as of the Closing Date. 3.8 NO CONFLICT. The execution and delivery of this Agreement and the Registration Rights Agreement by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under (i) any provision of the Certificate of Incorporation or By-laws of the Company or (ii) any agreement or instrument, permit, franchise, license, judgment, order, statute, law, ordinance, role or regulations, applicable to the Company or its respective properties or assets. 3.9 BROKERS OR FINDERS. Except for Pacific Growth Equities, Inc. and Deutsche Banc Alex Brown the Company has not dealt with any broker or finder in connection with the transactions contemplated by this Agreement, and, except for certain fees and expenses payable by the Company to Pacific Growth Equities, Inc., the Company has not incurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders' fees or agents commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby. 3.10 NASDAQ NATIONAL MARKET. The Common Stock is listed on the Nasdaq National Market System, and there are no proceedings to revoke or suspend such listing. 3.11 ABSENCE OF LITIGATION. There is no action, suit or proceeding or, to the Company's knowledge, any investigation, pending, or to the Company's knowledge, threatened by or before any governmental body against the Company and in which an unfavorable outcome, ruling or finding in any said matter, or for all matters taken as a whole, might have a material adverse effect on the Company. The foregoing includes, without limitation, any such action, suit, proceeding or investigation that questions this Agreement or the Registration Rights Agreement or the right of the Company to execute, deliver and perform under same. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser severally for itself, and not jointly with the other Purchasers, represents and warrants to the Company as follows: 4.1 AUTHORIZATION. All action on the part of such Purchaser and, if applicable, its officers, directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein and therein has been taken. When executed and delivered, each of this Agreement and the Registration Rights Agreement will constitute the legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. Such Purchaser has all requisite corporate power to enter into each of this Agreement and the Registration Rights Agreement and to carry out and perform its obligations under the terms of this Agreement and the Registration Rights Agreement. 4. 5 4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Purchaser is acquiring the Shares being purchased by it hereunder for investment, for its own account, and not for resale or with a view to distribution thereof in violation of the Securities Act. 4.3 INVESTOR STATUS; ETC. Such Purchaser certifies and represents to the Company that at the time such Purchaser acquires any of the Shares, such Purchaser will be an "Accredited Investor" as defined in Rule 501 of Regulation D promulgated under the Securities Act and was not organized for the purpose of acquiring the Shares. Such Purchaser's financial condition is such that it is able to bear the risk of holding the Shares for an indefinite period of time and the risk of loss of its entire investment. Such Purchaser has been afforded the opportunity to ask questions of and receive answers from the management of the Company concerning this investment and has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company's stage of development so as to be able to evaluate the risks and merits of its investment in the Company. 4.4 SHARES NOT REGISTERED. Such Purchaser understands that the Shares have not been registered under the Securities Act, by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and that the Shares must continue to be held by such Purchaser unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration. The Purchaser understands that the exemptions from registration afforded by Rule 144 (the provisions of which are known to it) promulgated under the Securities Act depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. 4.5 NO CONFLICT. The execution and delivery of this Agreement and the Registration Rights Agreement by such Purchaser and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in any violation of or default by such Purchaser (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under (i) any provision of the organizational documents of such Purchaser or (ii) any agreement or instrument, permit, franchise, license, judgment, order, statute, law, ordinance, rule or regulations, applicable to such Purchaser or its respective properties or assets. 4.6 BROKERS. Such Purchaser has not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement. 4.7 CONSENTS. All consents, approvals, orders and authorizations required on the part of such Purchaser in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated herein have been obtained and are effective as of the Closing Date. 5. CONDITIONS PRECEDENT. 5.1 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CONSUMMATE THE CLOSING. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent: 5. 6 (a) The representations and warranties contained herein of the Company shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by each Purchaser that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1 (a)). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall have performed all obligations and conditions herein required to be performed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Shares by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to such Purchaser, and such Purchaser shall have received copies (executed or certified, as may be appropriate) of all documents which such Purchaser may have reasonably requested in connection with such transactions. 5.2 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CONSUMMATE THE CLOSING. The obligation of the Company to consummate the Closing and to issue and sell to each of the Purchasers the Shares to be purchased by it at the Closing is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties contained herein of such Purchaser shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by the Company that, in the case of any representation and warranty of each Purchaser contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.2(a)). 6. 7 (b) The Registration Rights Agreement shall have been executed and delivered by each Purchaser. (c) The Purchasers shall have performed all obligations and conditions herein required to be performed or observed by the Purchasers on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The sale of the Shares by the Company shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) Each of the Purchasers shall have executed and delivered to the Company a Purchaser's Questionnaire, in the form attached hereto as Exhibit B, pursuant to which each such Purchaser shall provide information necessary to confirm each such Purchaser's status as an "accredited investor" (as such term is defined in Rule 501 promulgated under the Securities Act)". (g) Each of the other Purchasers shall have purchased, in accordance with this Agreement, the number of shares of Common Stock set forth opposite its name under the heading "Number of Shares to be Purchased" on Exhibit A. (h) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to the Company, and the Company shall have received counterpart originals, or certified or other copies of all documents, including without limitation records of corporate or other proceedings, which it may have reasonably requested in connection therewith. 6. TRANSFER, LEGENDS. 6.1 SECURITIES LAW TRANSFER RESTRICTIONS. No Purchaser shall sell, assign, pledge, transfer or otherwise dispose or encumber any of the Shares being purchased by it hereunder, except (i) pursuant to an effective registration statement under the Securities Act or (ii) pursuant to an available exemption from registration under the Securities Act and applicable state securities laws and, if requested by the Company, upon delivery by such Purchaser of an opinion of counsel reasonably satisfactory to the Company to the effect that the proposed transfer is exempt from registration under the Securities Act and applicable state securities laws. Any transfer or purported transfer of the Shares in violation of this Section 6.1 shall be voidable by the Company. The Company shall not register any transfer of the Shares in violation of this Section 6.1. The Company may, and may instruct any transfer agent for the Company, to place 7. 8 such stop transfer orders as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section 6.1. 6.2 LEGENDS. Each certificate requesting any of the Shares shall be endorsed with the legends set forth below, and each Purchaser covenants that, except to the extent such restrictions are waived by the Company, it shall not transfer the shares represented by any such certificate without complying with the restrictions on transfer described in this Agreement and the legends endorsed on such certificate: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM SAID ACT." 7. TERMINATION; LIABILITIES CONSEQUENT THEREON. This Agreement may be terminated and the transactions contemplated hereunder abandoned at any time prior to the Closing only as follows: (a) by the Purchasers, upon notice Company if the conditions set forth in Section 5.1 shall not have been satisfied on or prior to August 31, 2000; or (b) by the Company, upon notice to the Purchasers if the conditions set forth in Section 5.2 shall not have been satisfied on or prior to August 31, 2000; or (c) at any time by mutual agreement of the Company and the Purchasers; or (d) by the Purchasers, if there has been any breach of any representation or warranty or any material breach of any covenant of the Company contained herein and the same has not been cured within 15 days after notice thereof, (it being understood and agreed by each Purchaser that, in the case of any representation or warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation or warranty will be deemed to have been breached for purposes of this Section 7.1 (d) only if such representation or warranty was not true and correct in all material respects at the time such representation or warranty was made by the Company); or (e) by the Company, if there has been any breach of any representation, warranty or any material breach of any covenant of any Purchaser contained herein and the same has not been cured within 15 days after notice thereof (it being understood and agreed by the Company that, in the case of any representation and warranty of the Purchaser contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation or warranty will be deemed to have been breached for purposes of this Section 7.1 8. 9 (e) only if such representation or warranty was not true and correct in all material respects at the time such representation or warranty was made by such Purchaser). Any termination pursuant to this Section 7 shall be without liability on the part of any party, unless such termination is the result of a material breach of this Agreement by a party to this Agreement in which case such breaching party shall remain liable for such breach notwithstanding any termination of this Agreement. 8. MISCELLANEOUS PROVISIONS. 8.1 FURTHER ASSURANCES. Each party agrees to cooperate fully with the other party and to execute such further instruments, documents and agreements and to give such further written assurances, as may be reasonably requested by the other party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement. 8.2 RIGHTS CUMULATIVE. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. 8.3 NOTICES. (a) Any notices, reports or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted to be given hereunder shall be sent by postage prepaid first class mail, courier or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt. (b) All correspondence to the Company shall be addressed as follows: Coulter Pharmaceutical, Inc. 600 Gateway Blvd. South San Francisco, CA 94080 Attention: Michael F. Bigham Title: Chief Executive Officer Telecopier: (650) 553-2728 with a copy to: James C. Kitch Cooley Godward LLP 5 Palo Alto Square Palo Alto, CA 94306 Telecopier: (650) 849-7400 9. 10 (c) All correspondence to any Purchaser shall be sent to such Purchaser at the address set forth in Exhibit A. (d) Any entity may change the address to which correspondence to it is to be addressed by notification as provided for herein. 8.4 CAPTIONS. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation. 8.5 SEVERABILITY. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto. 8.6 GOVERNING LAW; INJUNCTIVE RELIEF. (a) This Agreement shall be governed by and construed in accordance with the internal and substantive laws of California and without regard to any conflicts of laws concepts which would apply the substantive law of some other jurisdiction. (b) Each of the parties hereto acknowledges and agrees that damages will not be an adequate remedy for any material breach or violation of this Agreement if such material breach or violation would cause immediate and irreparable harm (an "Irreparable Breach"). Accordingly, in the event of a threatened or ongoing Irreparable Breach, each party hereto shall be entitled to seek, in any state or federal court in the State of California, equitable relief of a kind appropriate in light of the nature of the ongoing or threatened Irreparable Breach, which relief may include, without limitation, specific performance or injunctive relief; provided, however, that if the party bringing such action is unsuccessful in obtaining the relief sought, the moving party shall pay the non-moving party's reasonable costs, including attorney's fees, incurred in connection with defending such action. Such remedies shall not be the parties' exclusive remedies, but shall be in addition to all other remedies provided in this Agreement. 8.7 WAIVER. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. 8.8 EXPENSES. Each party will bear its own costs and expenses in connection with this Agreement. 8.9 ASSIGNMENT. The rights and obligations of the parties hereto shall inure to the benefit of and shall be binding upon the authorized successors and permitted assigns of each party. Neither party may assign its rights or obligations under this Agreement or designate another person (i) to perform all or part of its obligations under this Agreement or (ii) to have all or part of its rights and benefits under this Agreement, in each case without the prior written consent of the other party. In the event of any assignment in accordance with the terms of this 10. 11 Agreement, the assignee shall specifically assume and be bound by the provisions of the Agreement by executing and agreeing to an assumption agreement reasonably acceptable to the other party. 8.10 SURVIVAL. The respective representations and warranties given by the parties hereto, and the other covenants and agreements contained herein, shall survive the Closing Date and the consummation of the transactions contemplated herein for a period of two years, without regard to any investigation made by any party. 8.11 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral. No modification, alteration, waiver or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly executed by the Company and the Majority Purchasers. The foregoing agreement is hereby executed as of the date first above written. COMPANY: Coulter Pharmaceutical, Inc. By: ------------------------------------ IN INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE HEREWITH SHALL CONSTITUTE THE INITIAL INVESTOR'S SIGNATURE TO THIS STOCK PURCHASE AGREEMENT. 11. 12 EXHIBIT A PURCHASERS
NUMBER OF SHARES TO BE PURCHASERS PURCHASED ---------- ---------------------- Alta Embarcadero BioPharma, LLC ........................................... 10,824 Alta BioPharma Partners, LP. .............................................. 287,173 Coulter Pharmaceuticals Chase Partners (Alta Bio), LLC .................... 164,003 Marcuard Cook & Cie, SA ................................................... 20,000 Narragansett Offshore Ltd. ................................................ 57,000 Narragansett I LP. ........................................................ 43,000 Three Arch Partners III, L.P. ............................................. 219,219 Three Arch Partners III, L.P. ............................................. 11,781 The Timken Living Trust UAD 9/14/99 ....................................... 50,000 Baker / Tisch Investments LLC ............................................. 92,400 Four Partners ............................................................. 231,000 FBB Associates ............................................................ 46,200 Baker Bros. Investments ................................................... 92,400 Veritas SG Investment Trust GmbH .......................................... 80,000 John Sullivan IRA ......................................................... 2,200 Herbert G. Roskind, Jr. IRA ............................................... 2,100 Presbyterian Homes * Family Services, Inc. ................................ 2,800 International Truck & Engine Corp. - Hourly ............................... 10,500 International Truck & Engine Corp. - Salaried ............................. 15,600 International Truck & Engine Corp.- VEBA .................................. 8,100 The University of Mississippi ............................................. 1,100 The University of Mississippi Medical Center ............................. 1,700 The University of Mississippi Foundation .................................. 8,200 Michigan Botanic Garden Foundation ........................................ 2,300 Meijer Foundation ......................................................... 3,200 Frederik Meijer Charitable Trust .......................................... 3,300 ATP Tour Inc. Player Pension Plan ......................................... 2,000 MJH Foundation ............................................................ 6,800 Commonfund Group .......................................................... 49,000 City of Springfield ....................................................... 3,600
1. 13 Charlottesville, VA Retirement System ..................................... 2,100 Meijer, Inc. Pension Plan ................................................. 10,300 Bridgeport Hospital Pension ............................................... 1,700 Bridgeport Hospital Foundation ............................................ 900 Bridgewater College ....................................................... 1,700 Trustees of Boston College ................................................ 4,500 University of Virginia .................................................... 3,800 Richard M. Drury IRA ...................................................... 1,400 Joan P. Drury IRA ......................................................... 100 James B. & Bruce R. Murray ................................................ 4,000 Ned's Island Investment Corp. ............................................. 2,700 Joseph F. & Marlene M. Bonasera ........................................... 1,000 Frederik G.H. Meijer Trust ................................................ 900 Lena E. S. Meijer Trust ................................................... 400 Laura C. Roskind .......................................................... 100 Wheaton College ........................................................... 8,200 Tremont Temple Baptist Church General Trust Fund .......................... 10,000 Tremont Temple Bobbie Currie Sunday School Fund ........................... 3,000 The Berkeley Retirement Home .............................................. 3,000 Baillie Lumber Co. Inc. Profit Share Plan ................................. 3,800 Dows - First Calvary Baptist Church ....................................... 2,000 Buzz Johnson, IRA ......................................................... 1,600 Society for the Preservation of New England Antiquities ................... 3,700 The Evangelical Covenant Church Pension Fund .............................. 4,900 1101 Foundation ........................................................... 3,300 General Board of Church of Nazarene ....................................... 21,000 St. Joseph Health System .................................................. 15,500 Bryan N. Danforth #2 ...................................................... 6,000 Jeffrey S. Meyer .......................................................... 700 Richard J. Tavilla ........................................................ 1,500 Kirk Ware ................................................................. 1,200 Dr. G. Timothy Johnson M.D., P.C., MPPP ................................... 1,000 Republic National Bank INSIGHT Funds ...................................... 1,500
2. 14 EXHIBIT B INVESTOR QUESTIONNAIRE INSTRUCTIONS The purpose of this Questionnaire is to determine whether you meet the investor suitability standards imposed by Regulation D promulgated under the Securities Act of 1933, as amended (the "Act"), and generally to assist Coulter Pharmaceutical, Inc. (the "Company") in complying with the requirements of the Act and any applicable state securities laws. The securities being offered have not been, and will not be, registered under the Act and are being sold in reliance upon an exemption from the registration requirements of the Act and exemptions from applicable state securities laws. The information furnished herein will be relied upon in connection with the offering and sale of securities in compliance with the aforesaid exemption. Please direct any questions regarding this Questionnaire to (Quoc An Nguyen or Jane Ross) at (650) 843-5000. All information supplied will be treated in confidence, except that this Investor Questionnaire may be provided to such parties as deemed appropriate or necessary to establish the availability of an exemption from registration under the Act and under state securities laws. PLEASE COMPLETE, SIGN, AND DATE THIS QUESTIONNAIRE AND RETURN IT TO THE ATTENTION OF: JANE ROSS, ESQ. COOLEY GODWARD LLP 5 PALO ALTO SQUARE PALO ALTO, CA 94306 A PREPAID FEDERAL EXPRESS ENVELOPE HAS BEEN ENCLOSED FOR YOUR CONVENIENCE. PLEASE ANSWER EACH QUESTION. (Please print or type.) If the answer to any question is "None" or "Not Applicable," please so state. Name of Investor: --------------------------------------------------------------- Citizenship: -------------------------------------------------------------------- Residence Address: -------------------------------------------------------------- Social Security Number or ------------------------------------------------------- Tax Identification Number: ------------------------------------------------------- Occupation or Business: --------------------------------------------------------- Business Address: --------------------------------------------------------------- 1. Individuals please respond to the following questions by placing an "X" next to the appropriate answer. 1. 15 (a) Did your individual income without regard to that of your spouse exceed $200,000 in the last two full calendar years, and do you reasonably expect such individual income to exceed $200,000 in the current year? For the purpose of this question, income includes earned income, as well as other items of ordinary income, such as dividends, interest, and royalties, but excludes capital gains. Yes ____ No ____ (b) Did your joint income with your spouse exceed $300,000 in the last two full calendar years, and do you reasonably expect such joint income to exceed $300,000 in the current year? For the purpose of this question, income includes earned income, as well as other items of ordinary income, such as dividends, interest, and royalties, but excludes capital gains. Yes ____ No ____ (c) Does your net worth or joint net worth with that of your spouse exceed $1,000,000? Yes ____ No ____ (d) Are you a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934? Yes ____ No ____ (e) Set forth in the space provided below the state(s), if any, in the United States in which you maintained your residence during the past two years and the dates during which you resided in each state: ------------------------------------------------ ------------------------------------------------ (f) Are you a director or executive officer of the Company? Yes ____ No ____ 2. Corporations, partnerships, and investors other than individuals, please answer the following questions: (a) Under the laws of what jurisdiction were you formed? _________________ (b) Were you formed for the purpose of investing in the securities being offered? Yes ____ No ____ (c) Are you a national bank or a banking institution organized under the laws of any state or any territory of the United States or the District of Columbia? Yes ____ No ____ 2. 16 (d) Are you a savings and loan association, building and loan association, cooperative bank, homestead association, or similar institution, which is supervised and examined by any state or federal authority having supervision over such institution? Yes ____ No ____ (e) Are you a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934? Yes ____ No ____ (f) Are you a company (i) whose primary and predominant business is underwriting insurance and subject to the supervision by a regulatory agency under the laws of any state or territory, or (ii)registered as an investment company under the Investment Company Act of 1940, or (iii) a Small Business Investment Company licensed by the U.S. Small Business Administration ("SBIC")? Yes ____ No ____ (g) Are you a "business development company" within the meaning of the Investment Company Act of 1940 or the Investment Advisers Act of 1940? Yes ____ No ____ (h) Are you an employee benefit plan under the Employee Retirement Income Security Act of 1974 (a "Plan") with assets in excess of $5,000,000? Yes ____ No ____ If you are such a Plan, but if the Plan's total assets do not exceed $5,000,000, are investment decisions for the Plan made by a bank, savings and loan association, insurance company or registered investment adviser acting as fiduciary? (If yes, please specify the name of the fiduciary.) Yes ____ No ____ Name of Fiduciary: ___________________ If you are a self-directed Plan, but if the Plan's total assets do not exceed $5,000,000, are investment decisions made solely by persons or entities that can answer yes to one or more of the questions under paragraphs (b) - (e) of Item 1, or (c) - (k) under this Item 2? (If yes, please specify the applicable Item and Paragraph.) Yes ____ No ____ Item and Paragraph: ______________ 3. 17 (i) Are you (A)(i) a tax exempt organization which is qualified under Section 501(c)(3) of the Internal Revenue Code of 1986 as amended, or (ii) a corporation, or (iii) a Massachusetts or similar business trust, or (iv) partnership, not formed for the specific purpose of acquiring the securities offered, and(B) which has assets in excess of $5,000,000? Yes ____ No ____ (j) Are you a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment? Yes ____ No ____ If yes, please attach a memorandum describing such person's educational background, professional memberships or licenses, current employment, principal business and professional activities during the last five years, and experience as an investor in securities. Include any additional information evidencing that such person has sufficient knowledge and experience in financial matters that such person would be capable of evaluating the merits and risks of investing in the securities being offered. (k) Are you an entity in which all of the equity owners are persons who are either (i) entities described in paragraphs (c) through (j) above; (ii) individuals whose net worth, or joint net worth with their spouses, exceeds $1,000,000; (iii)individuals whose income without regard to that of their spouses exceeded $200,000, or whose joint income with their spouses exceeded $300,000, in each of the last two years and who reasonably expect such individual income to exceed $200,000 or such joint income to exceed $300,000 this year; or (iv) individuals who are brokers or dealers registered pursuant to Section 15 of the Securities Exchange Act of 19347 Yes ____ No ____ If an equity owner is an entity described in paragraphs (h) or (j) under this Item 2, please provide the information required by such paragraph. (l) Set forth in the space provided below the (i) state(s), if any, in the United States in which you maintained your principal office during the past two years and the dates during which you maintained your office in each state, (ii) the state(s), if any, in which you are incorporated or otherwise organized, -and (iii) the state(s), if any, in which you still pay income taxes: ------------------------------------ ------------------------------------ ------------------------------------ 4. 18 The undersigned hereby represents that all the information supplied herein is true, correct and complete as of the date hereof. The undersigned agrees to notify Cooley Godward LLP immediately of any material change in the forgoing answers. In connection with his, her or its purchase of securities, the undersigned hereby further represents, warrants and certifies as follows: (a) That the undersigned has adequate means of providing for his, her or its current needs and personal contingencies, that the undersigned has no need now, and anticipates no need in the foreseeable future, to sell the securities, and the undersigned currently has sufficient financial liquidity to afford a complete loss of my investment in the Company. (b) That the undersigned's overall commitment to investments which are not readily marketable is not disproportionate to the undersigned's net worth and my investment in the securities will not cause such overall commitment to become excessive. (c) That all information which the undersigned has provided (or will provide) concerning the undersigned and its financial position, is correct and complete as of the date set forth below (or will be correct and complete as of the date when provided) and, if there should be any material change in such information prior to the undersigned having made its investment in the Company, the undersigned will immediately provide such information to the Company. (d) That the undersigned has received and carefully reviewed descriptive materials relating to the Company and any other materials relating thereto that the undersigned has requested. (e) That the undersigned has had an opportunity to ask questions of and receive answers from the authorized representatives of the Company, and to review any relevant documents and records concerning the business of the Company and the terms and conditions of this investment, and that any such questions have been answered to the undersigned's full satisfaction. (f) That no person or entity, other than the Company or its authorized representatives, has offered the securities to the undersigned. (g) That the undersigned has such knowledge and experience in financial and business matters so that the undersigned is capable of evaluating the merits and risks of an investment in the Company, or the undersigned or the undersigned's financial and investment advisors together have such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of an investment in the Company. (h) That the securities for which the undersigned is completing this Investor Certificate will be acquired for the undersigned's own account for investment and not with a view toward subdivision, resale, or redistribution thereof in a manner prohibited under the Securities Act of 1933, as amended (the "Act"), and the undersigned does not presently have any reason to anticipate any change in my circumstances or other particular occasion or event which 5. 19 would cause the undersigned has to sell such securities. The undersigned has no contract, undertaking, agreement, understanding, or arrangement with any person to sell, transfer, or pledge to any person any part or all of the securities which the undersigned is acquiring, or any interest therein, and have no present plans to enter into the same. (i) That it has been called to the undersigned's attention in connection with an investment in the Company that such investment is speculative in nature and involves a high degree of risk. (j) That the undersigned understand that no federal or state agency has passed upon or made any recommendation or endorsement of an investment in the securities. THE UNDERSIGNED UNDERSTANDS AND ACKNOWLEDGES THAT THE UNDERSIGNED'S SIGNATURE TO THIS INVESTOR QUESTIONNAIRE SHALL CONSTITUTE THE UNDERSIGNED'S SIGNATURE PAGE TO THE STOCK PURCHASE AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENTS, AND IF ACCEPTED BY THE COMPANY, WILL CONSTITUTE A LEGALLY BINDING OBLIGATION OF THE UNDERSIGNED; PROVIDED, HOWEVER, IF THE COMPANY DOES NOT ACCEPT THE FOLLOWING SIGNATURE PAGE, THE FOLLOWING SIGNATURE PAGE SHALL BE VOID. 6. 20 SIGNATURE PAGE FOR THE INVESTOR QUESTIONNAIRE, STOCK PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT The undersigned Purchaser hereby executes the Investor Questionnaire, Stock Purchase Agreement and the Registration Rights Agreement with Coulter Pharmaceutical, Inc. (the "Company" ) and hereby authorizes this signature page to be attached to a counterpart of such documents executed by a duly authorized officer of the Company. NUMBER OF SHARES TO BE PURCHASED: ---------------------- ---------------------------------------- NAME OF PURCHASER (PLEASE TYPE OR PRINT) U.S. TAXPAYER ID NO., IF ANY: By - -------------------------------------- -------------------------------------- Title: -------------------------------- Address: ------------------------------ ------------------------------ ------------------------------ Please set out below your registration requirements. IF SHARES ARE TO BE REGISTERED IN THE NAME OF MORE THAN ONE ENTITY, PROVIDE THE INFORMATION REQUESTED BELOW FOR EACH ENTITY. (PLEASE USE MULTIPLE PAGES, ONE FOR EACH ENTITY.) NAME IN WHICH SHARES ARE TO BE REGISTERED: ----------------------------------------------------------- NUMBER OF SHARES TO BE PURCHASED: ------------------------------------------------------------------- ADDRESS OF REGISTERED HOLDER (IF DIFFERENT FROM ABOVE): ------------------------------------------------------ ------------------------------------------------------ NUMBER OF SHARES OF THE COMPANY'S COMMON STOCK CURRENTLY HELD BY THE ABOVE NAMED ENTITY: -------------------------- CONTACT NAME AND TELEPHONE NUMBER REGARDING SETTLEMENT AND REGISTRATION: Name ----------------------------------------------------------------------- Telephone Number ----------------------------------------------------------- 7. EX-4.4 3 f65205ex4-4.txt EXHIBIT 4.4 1 EXHIBIT 4.4 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made of August 11, 2000 by and among (i) Coulter Pharmaceutical, Inc., a Delaware corporation (the "Company"), (ii) each person listed on Exhibit A attached hereto (collectively, the "Initial Investors" and each individually, an "Initial Investor"), and (iii) each person or entity that subsequently becomes a party to this Agreement pursuant to, and in accordance with, the provisions of Section 12 hereof (collectively, the "Investor Permitted Transferees" and each individually an "Investor Permitted Transferee"). WHEREAS, the Company has agreed to issue and sell to the Initial Investors, and the Initial Investors have agreed to purchase from the Company, 1,655,000 shares (the "Purchased Shares") of the Company's common stock, $0.001 par value per share (the "Common Stock"), all upon the terms and conditions set forth in that certain Stock Purchase Agreement, dated of even date herewith, between the Company and the Initial Investors (the "Stock Purchase Agreement"); and WHEREAS, the terms of the Stock Purchase Agreement provide that it shall be a condition precedent to the closing of the transactions thereunder, for the Company and the Initial Investors to execute and deliver this Agreement. NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto hereby agree as follows: 1. DEFINITIONS. The following terms shall have the meanings provided therefor below or elsewhere in this Agreement as described below: "BOARD" shall mean the board of directors of the Company. "CLOSING" shall have the meaning ascribed to such term in the Stock Purchase Agreement. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder. "INVESTORS" shall mean, collectively, the Initial Investors and the Investor Permitted Transferees; provided, however, that the term "Investors" shall not include any of the Initial Investors or any of the Investor Permitted Transferees that ceases to own or hold any Purchased Shares. "MAJORITY HOLDERS" shall mean, at the relevant time of reference thereto, those Investors holding and/or having the right to acquire, as the case may be, more than fifty percent (50%) of the Registrable Shares held by all of the Investors. "QUALIFYING HOLDER" shall have the meaning ascribed thereto in Section 12 hereof. 1. 2 "REGISTRABLE SHARES" shall mean the Purchased Shares, provided, however, such term shall not, after the Mandatory Registration Termination Date, include any of the Purchased Shares that become or have become eligible for resale pursuant to Rule 144 or pursuant to Regulation S. "RULE 144" shall mean Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision. "SEC" shall mean the Securities and Exchange Commission. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder. 2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective and legally binding only if the Closing occurs. This Agreement shall terminate and be of no further force or effect, automatically and without any action being required of any party hereto, upon the termination of the Stock Purchase Agreement pursuant to Section 7 thereof. 3. MANDATORY REGISTRATION. (a) On or prior to August 30, 2000, the Company will prepare and file with the SEC a registration statement on Form S-3, for the purpose of registering under the Securities Act all of the Registrable Shares for resale by, and for the account of, the Investors as selling stockholders thereunder (the "Registration Statement"). The Registration Statement shall permit the Investors to offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, any or all of the Registrable Shares. The Company agrees to use reasonable efforts to cause the Registration Statement to become effective as soon as practicable. The Company shall be required to keep the Registration Statement effective until such date that is the earlier of (i) the date when all of the Registrable Shares registered thereunder shall have been sold or (ii) the second anniversary of the Closing, subject to extension as set forth below (such date is referred to herein as the "Mandatory Registration Termination Date"). Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Investors shall have no further right to offer or sell any of the Registrable Shares pursuant to the Registration Statement (or any prospectus relating thereto). In the event the right of the selling Investors to use the Registration Statement (and the prospectus relating thereto) is delayed or suspended pursuant to Sections 4(c) or 10 hereof, the Company shall be required to extend the Mandatory Registration Termination Date beyond the second anniversary of the Closing by the same number of days as such delay, or Suspension Period (as defined in Section 10 hereof). (b) The offer and sale of the Registrable Shares pursuant to the Registration Statement shall not be underwritten. 4. OBLIGATIONS OF THE COMPANY. In connection with the Company's obligation under Section 3 and hereof to file the Registration Statement with the SEC and to use its best efforts to cause the Registration Statement to become effective as soon as practicable, the Company shall, as expeditiously as reasonably possible: 2. 3 (a) Prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Shares covered by the Registration Statement; (b) Furnish to the selling Investors such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents (including, without limitation, prospectus amendments and supplements as are prepared by the Company in accordance with Section 4(a) above) as the selling Investors may reasonably request in order to facilitate the disposition of such selling Investors' Registrable Shares; (c) Notify the selling Investors, at any time when a prospectus relating to the Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading; and, thereafter, the Company will promptly prepare (and, when completed, give notice to each selling Investor) a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; provided that upon such notification by the Company, the selling Investors will not offer or sell Registrable Shares until the Company has notified the selling Investors that it has prepared a supplement or amendment to such prospectus and delivered copies of such supplement or amendment to the selling Investors (it being understood and agreed by the Company that the foregoing proviso shall in no way diminish or otherwise impair the Company's obligation to promptly prepare a prospectus amendment or supplement as above provided in this Section 4(c) and deliver copies of same as above provided in Section 4(b) hereof); and (d) Use commercially reasonable efforts to register and qualify the Registrable Shares covered by the Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably appropriate in the opinion of the Company and the placement agents, if any, 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, and provided further that (notwithstanding anything in this Agreement to the contrary with respect to the bearing of expenses) if any jurisdiction in which any of such Registrable Shares shall be qualified shall require that expenses incurred in connection with the qualification therein of any such Registrable Shares be borne by the selling Investors, then the selling Investors shall, to the extent required by such jurisdiction, pay their pro rata share of such qualification expenses. 5. FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Agreement that the selling Investors shall furnish to the Company such information regarding them and the securities held by them as the Company shall reasonably request and as shall be required in order to effect any registration by the Company pursuant to this Agreement. 3. 4 6. EXPENSES OF REGISTRATION. All expenses incurred in connection with the registration of the Registrable Shares pursuant to this Agreement (excluding underwriting, brokerage and other selling commissions and discounts), including without limitation all registration and qualification and filing fees, printing, and fees and disbursements of counsel for the Company, shall be borne by the Company. 7. DELAY OF REGISTRATION. The Investors shall not take any action to restrain, enjoin or otherwise delay any registration as the result of any controversy which might arise with respect to the interpretation or implementation of this Agreement. 8. INDEMNIFICATION. (a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Investor, any investment banking firm acting as an underwriter for the selling Investors, any broker/dealer acting on behalf of any selling Investors and each officer and director of such selling Investor, such underwriter, such broker/dealer and each person, if any, who controls such selling Investor, such underwriter or broker/dealer within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in the Registration Statement, in any preliminary prospectus or final prospectus relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, or arise out of or are based upon 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; and will reimburse such selling Investor, such underwriter, broker/dealer or such officer, director or controlling person for 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 Section 8(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 in any such case for any such loss, damage, liability or action to the extent that it arises out of or is based upon an untrue statement or alleged untrue statement or omission made in connection with the Registration Statement, any preliminary prospectus or final prospectus relating thereto or any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, in reliance upon and in conformity with written information furnished expressly for use in connection with the Registration Statement or any such preliminary prospectus or final prospectus by the selling Investors, any underwriter for them or controlling person with respect to them. (b) To the extent permitted by law, each selling Investor will severally and not jointly indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement, each person, if any, who controls the Company within the meaning of the Securities Act, any investment banking firm acting as underwriter for the Company or the selling Investors, or any broker/dealer acting on behalf of the Company or any selling Investors, and all other selling Investors against any losses, claims, damages or liabilities to which the Company or any such director, officer, controlling person, underwriter, or 4. 5 broker/dealer or such other selling Investor may become subject to, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in the Registration Statement or any preliminary prospectus or final prospectus, relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, or arise out of or are based upon 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, in each case to the extent and only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, in any preliminary prospectus or final prospectus relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, in reliance upon and in conformity with written information furnished by the selling Investor expressly for use in connection with the Registration Statement, or any preliminary prospectus or final prospectus; and such selling Investor will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter, broker/dealer or other selling Investor in connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that the liability of each selling Investor hereunder shall be limited to the proceeds (net of underwriting discounts and commissions, if any) received by such selling Investor from the sale of Registrable Shares covered by the Registration Statement, and provided, further, however, that the indemnity agreement contained in this Section 8(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 those selling Investor(s) against which the request for indemnity is being made (which consent shall not be unreasonably withheld). (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party, will, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof and the indemnifying party shall have the right to participate in and, to the extent the indemnifying party desires, jointly with any other indemnifying party similarly noticed, to assume at its expense the defense thereof with counsel mutually satisfactory to the indemnifying parties with the consent of the indemnified party which consent will not be unreasonably withheld, conditioned or delayed. In the event that the indemnifying party assumes any such defense, the indemnified party may participate in such defense with its own counsel and at its own expense, provided, however, that the counsel for the indemnifying party shall act as lead counsel in all matters pertaining to such defense or settlement of such claim and the indemnifying party shall only pay for such indemnified party's expenses for the period prior to the date of its participation on such defense. The failure to notify an indemnifying party promptly of the commencement of any such action, if prejudicial to his ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 8, but the omission so to notify the indemnifying party will not relieve him of any liability which he may have to any indemnified party otherwise other than under this Section 8. (d) Notwithstanding anything to the contrary herein, the indemnifying party shall not be entitled to settle any claim, suit or proceeding unless in connection with such settlement the indemnified party receives an unconditional release with respect to the subject 5. 6 matter of such claim, suit or proceeding and such settlement does not contain any admission of fault by the indemnified party. 9. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Investors the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Investors to sell the Purchased Shares to the public without registration, the Company agrees to use commercially reasonable efforts: (i) to make and keep public information available, as those terms are understood and defined in the General Instructions to Form S-3, or any successor or substitute form, and in Rule 144, (ii) to file with the SEC in a timely manner all reports and other documents required to be filed by an issuer of securities registered under the Securities Act or the Exchange Act, (iii) as long as any Investor owns any Purchased Shares, to furnish in writing upon such Investor's request a written statement by the Company that it has complied with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act, and to furnish to such Investor a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as may be reasonably requested in availing such Investor of any rule or regulation of the SEC permitting the selling of any such Purchased Shares without registration and (iv) undertake any additional actions reasonably necessary to maintain the availability of the Registration Statement or the use of Rule 144. 10. DEFERRAL AND LOCK-UP. (a) Notwithstanding anything in this Agreement to the contrary, if the Company shall furnish to the selling Investors a certificate signed by the President or Chief Executive Officer of the Company stating that the Board of Directors of the Company has made the good faith determination (i) that continued use by the selling Investors of the Registration Statement for purposes of effecting offers or sales of Registrable Shares pursuant thereto would require, under the Securities Act, premature disclosure in the Registration Statement (or the prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction or would make the successful consummation by the Company of any such material transaction significantly less likely and (iii) that it is therefore essential to suspend the use by the Investors of such Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Registrable Shares pursuant thereto, then the right of the selling Investors to use the Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Registrable Shares pursuant thereto shall be suspended for a period (the "Suspension Period") of not more than 90 days after delivery by the Company of the certificate referred to above in this Section 10. During the Suspension Period, none of the Investors shall offer or sell any Registrable Shares pursuant to or in reliance upon the Registration Statement (or the prospectus relating thereto). 11. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor under this Agreement shall be transferred or assigned to any person unless (i) such person is a Qualifying Holder (as defined below), and (ii) such person agrees to become a party to, and bound by, all of the terms and conditions of, this Agreement by duly executing and delivering to the Company an Instrument of Adherence in the form attached as Exhibit B hereto. 6. 7 For purposes of this Section 11, the term "Qualifying Holder" shall mean, with respect to any Investor, (i) any partner thereof, (ii) any corporation, partnership controlling, controlled by, or under common control with, such Investor or any partner thereof, or (iii) any other direct transferee from such Investor of at least 50% of those Registrable Shares held or that may be acquired by such Investor. None of the rights of any Investor under this Agreement shall be transferred or assigned to any Person (including, without limitation, a Qualifying Holder) that acquires Registrable Shares in the event that and to the extent that such Person is eligible to resell such Registrable Shares pursuant to Rule 144(k) of the Securities Act or may otherwise resell such Registrable Shares pursuant to an exemption from the registration provisions of the Securities Act. 12. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and it also supersedes any and all prior negotiations, correspondence, agreements or understandings with respect to the subject matter hereof. 13. MISCELLANEOUS. (a) This Agreement may not be amended, modified or terminated, and no rights or provisions may be waived, except with the written consent of the Majority Holders and the Company. (b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors or assigns, provided that the terms and conditions of Section 11 hereof are satisfied. This Agreement shall also be binding upon and inure to the benefit of any transferee of any of the Purchased Shares provided that the terms and conditions of Section 11 hereof are satisfied. Notwithstanding anything in this Agreement to the contrary, if at any time any Investor shall cease to own any Purchased Shares, all of such Investor's rights under this Agreement shall immediately terminate. (c) (i) Any notices, response or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted to be given hereunder shall be sent by courier (overnight or same day) or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt. (ii) All correspondence to the Company shall be addressed as follows: Coulter Pharmaceutical, Inc. 600 Gateway Blvd. South San Francisco, CA 94080 Attention: Michael F. Bigham Chief Executive Officer Telecopier: 650-553-2728 7. 8 with a copy to: Cooley Godward LLP 5 Palo Alto Square Palo Alto, CA 94306 Attention: James C. Kitch Telecopier: 650-849-7400 (iii) All correspondence to any Investor shall be sent to such Purchaser at the address set forth in Exhibit A. (d) Any entity may change the address to which correspondence to it is to be addressed by notification as provided for herein. (e) The parties acknowledge and agree that in the event of any breach of this Agreement, remedies at law may be inadequate, and each of the parties hereto shall be entitled to seek specific performance of the obligations of the other parties hereto and such appropriate injunctive relief as may be granted by a court of competent jurisdiction. (f) This Agreement may be executed in a number of counterparts, and of which together shall for all purposes constitute one Agreement, binding on all the parties hereto notwithstanding that all such parties have not signed the same counterpart. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 8. 9 IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date and year first above written. COULTER PHARMACEUTICAL, INC. By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- THE INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE HEREWITH SHALL CONSTITUTE THE INTIAL INVESTOR'S SIGNATURE TO THIS REGISTRATION RIGHTS AGREEMENT. 9. 10 EXHIBIT A INITIAL INVESTORS - ---------------------------------------------------------- Alta Embarcadero BioPharma, LLC Alta BioPharma Partners, LP Coulter Pharmaceuticals Chase Partners (Alta Bio), LLC Marcuard Cook & Cie, SA Narragansett Offshore Ltd. Narragansett I LP Three Arch Partners III, L.P. Three Arch Partners III, L.P. The Timken Living Trust UAD 9/14/99 Baker / Tisch Investments LLC Four Partners FBB Associates Baker Bros. Investments Veritas SG Investment Trust GmbH John Sullivan IRA Herbert G. Roskind, Jr. IRA Presbyterian Homes * Family Services, Inc. International Truck & Engine Corp. - Hourly International Truck & Engine Corp. - Salaried International Truck & Engine Corp.- VEBA The University of Mississippi The University of Mississippi Medical Center The University of Mississippi Foundation Michigan Botanic Garden Foundation Meijer Foundation Frederik Meijer Charitable Trust ATP Tour Inc. Player Pension Plan MJH Foundation Commonfund Group City of Springfield Charlottesville, VA Retirement System Meijer, Inc. Pension Plan 1. 11 INITIAL INVESTORS - ---------------------------------------------------------- Bridgeport Hospital Pension Bridgeport Hospital Foundation Bridgewater College Trustees of Boston College University of Virginia Richard M. Drury IRA Joan P. Drury IRA James B. & Bruce R. Murray Ned's Island Investment Corp. Joseph F. & Marlene M. Bonasera Frederik G.H. Meijer Trust Lena E. S. Meijer Trust Laura C. Roskind Wheaton College Tremont Temple Baptist Church General Trust Fund Tremont Temple Bobbie Currie Sunday School Fund The Berkeley Retirement Home Baillie Lumber Co. Inc. Profit Share Plan Dows - First Calvary Baptist Church Buzz Johnson, IRA Society for the Preservation of New England Antiquities The Evangelical Covenant Church Pension Fund 1101 Foundation General Board of Church of Nazarene St. Joseph Health System Bryan N. Danforth #2 Jeffrey S. Meyer Richard J. Tavilla Kirk Ware Dr. G. Timothy Johnson M.D., P.C., MPPP Republic National Bank INSIGHT Funds 2. 12 EXHIBIT B INSTRUMENT OF ADHERENCE Reference is hereby made to that certain Registration Rights Agreement, dated as of August __, 2000, among Coulter Pharmaceutical, Inc. a Delaware, corporation (the "Company"), the Initial Investors and the Investor Permitted Transferees, as amended and in effect from time to time (the "Registration Rights Agreement"). Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Registration Rights Agreement. The undersigned, in order to become the owner or holder of [__________ shares of common stock, par value $0.001 per share (the "Common Stock"), of the Company], hereby agrees that, from and after the date hereof, the undersigned has become a party to the Registration Rights Agreement in the capacity of an Investor Permitted Transferee, and is entitled to all of the benefits under, and is subject to all of the obligations, restrictions and limitations set forth in, the Registration Rights Agreement that are applicable to Investor Permitted Transferees. This Instrument of Adherence shall take effect and shall become a part of the Registration Rights Agreement immediately upon execution. Executed under seal as of the date set forth below under the laws of_______________________________________________. Signature: ------------------------------- Name: Title: Accepted: Coulter Pharmaceutical, Inc. By: ----------------------------------- Name: Michael F. Bigham Title: Chief Executive Officer Date: --------------------- 1. EX-5.1 4 f65205ex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 [COOLEY GODWARD LETTERHEAD] August 30, 2000 Coulter Pharmaceutical, Inc. 600 Gateway Boulevard South San Francisco, CA 94080 Dear Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Coulter Pharmaceutical, Inc. (the "Company") of a Registration Statement on Form S-3 (the "Registration Statement") with the Securities and Exchange Commission covering the offering for resale of 1,655,000 shares of the Company's Common Stock (the "Shares"), with a par value of $0.001, issued in connection with that certain Stock Purchase Agreement by and between the Company and the purchasers named therein. In connection with this opinion, we have examined the Registration Statement, the Company's Certificate of Incorporation and Bylaws, as amended, the resolutions adopted by the Finance Committee of the Board of Directors of the Company on August 30, 2000, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares are validly issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus included in the Registration Statement. Sincerely, COOLEY GODWARD LLP By: /s/ James C. Kitch ------------------------------------------ James C. Kitch EX-23.1 5 f65205ex23-1.txt EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3 No. 33-_____) and related Prospectus of Coulter Pharmaceutical, Inc. for the registration of 1,655,000 shares of its Common Stock and to the incorporation by reference therein of our report dated January 27, 2000, with respect to the consolidated financial statements of Coulter Pharmaceutical, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1999 filed with the Securities and Exchange Commission. Palo Alto, California August 28, 2000 /s/ ERNST & YOUNG LLP -----END PRIVACY-ENHANCED MESSAGE-----