Exhibit 1.1
February 8, 2007
CONFIDENTIAL
James A. Bianco, M.D.
President & Chief Executive
Officer
Cell Therapeutics, Inc.
501 Elliot Ave. W #400
Seattle, WA 98119
Dear Dr. Bianco:
This letter (the “
Agreement ”) constitutes the agreement among
Rodman & Renshaw, LLC, (the “ Placement Agent
”) and Cell Therapeutics, Inc. (the “ Company
”), that the Placement Agent shall serve as the exclusive
placement agent for the Company, on a “reasonable best
efforts” basis, in connection with the proposed placement
(the “ Placement ”) of registered securities
(the “ Securities ”) of the Company, including
convertible preferred shares (the “ Shares ”)
and warrants to purchase shares of common stock. The terms of such
Placement and the Securities shall be mutually agreed upon by the
Company and the purchasers (each, a “ Purchaser
” and collectively, the “ Purchasers ”)
and nothing herein constitutes that the Placement Agent would have
the power or authority to bind the Company or any Purchaser or an
obligation for the Company to issue any Securities or complete the
Placement. This Agreement and the Securities Purchase Agreement
executed and delivered by the Company and the Purchasers in
connection with the Placement shall be collectively referred to
herein as the “ Transaction Documents .” The
date of the closing of the Placement shall be referred to herein as
the “ Closing Date .” The Company expressly
acknowledges and agrees that the Placement Agent’s
obligations hereunder are on a reasonable best efforts basis only
and that the execution of this Agreement does not constitute a
commitment by the Placement Agent to purchase the Securities and
does not ensure the successful placement of the Securities or any
portion thereof or the success of the Placement Agent with respect
to securing any other financing on behalf of the
Company.
SECTION 1.
Compensation and other
Fees.
As compensation for the services
provided by the Placement Agent hereunder, the Company agrees to
pay to the Placement Agent:
(A) The fees set forth below with
respect to the Placement:
A cash fee payable immediately upon
the closing of the Placement equal to 6% of the aggregate gross
proceeds raised in the Placement.
(B) The fees set forth below if
there is any financing of equity or debt or other capital raising
activity of the Company (a “ Financing ”) within
6 months after the expiration or termination of this Agreement with
any investors that were introduced to the Company by the Placement
Agent pursuant to this Agreement:
A cash fee payable immediately upon
the closing of any portion of any Financing and equal to such
percentage of the aggregate gross proceeds raised in such Financing
from such investors as
is agreed by the Company and the
investment banker or bankers engaged for such Financing; divided
50% to the Placement Agent and 50% to the investment banker or
bankers engaged by the Company in connection with such subsequent
Financing. Such “tail” fee shall only be payable in
connection with any investor (or any affiliate of such investor)
that has been contacted by the Placement Agent prior to giving
notice of any termination of this Agreement, and listed on Schedule
A prepared by the Placement Agent and approved by the Company and
attached hereto at the time of execution of this
Agreement.
(C) The Company also agrees to
reimburse the Placement Agent’s expenses (with supporting
invoices/receipts) up to a maximum of $20,000. Such reimbursement
shall be payable immediately upon (but only in the event of) the
closing of the Placement.
SECTION 2.
REGISTRATION
STATEMENT.
The Company represents and warrants
to, and agrees with, the Placement Agent that:
(A) The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (Registration File
No. 333-131533) under the Securities Act of 1933, as amended
(the “ Securities Act ”) which became, and
remains, effective for the registration under the Securities Act of
the Shares. At the time of such filing, the Company met the
requirements of Form S-3 under the Securities Act. Such
registration statement meets the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complies with said Rule.
The Company will file with the Commission pursuant to Rule 424(b)
under the Securities Act, and the rules and regulations (the
“ Rules and Regulations ”) of the Commission
promulgated thereunder, a supplement to the form of prospectus
included in such registration statement relating to the placement
of the Shares and the plan of distribution thereof and will include
in such supplement all further information (financial and other)
with respect to the Company required to be set forth therein. Such
registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the “
Registration Statement ”; such prospectus in the form
in which it appears in the Registration Statement is hereinafter
called the “ Base Prospectus ”; and the
supplemented form of prospectus, in the form in which it will be
filed with the Commission pursuant to Rule 424(b) (including the
Base Prospectus as so supplemented) is hereinafter called the
“ Prospectus Supplement .” Any reference in this
Agreement to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the
documents incorporated by reference therein (the “
Incorporated Documents ”) pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), on or
before the date of this Agreement, or the issue date of the Base
Prospectus or the Prospectus Supplement, as the case may be; and
any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference. All references in this Agreement
to financial statements and schedules and other information which
is “contained,” “included,”
“described,” “referenced,” “set
forth” or “stated” in the Registration Statement,
the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Prospectus Supplement, as the
case may be. No stop order suspending the effectiveness of the
Registration Statement or the use of the Base Prospectus or the
Prospectus Supplement has been issued, and no proceeding for any
such purpose is pending or has been initiated or, to the
Company’s knowledge, is threatened by the Commission. For
purposes of this Agreement, “ free writing prospectus
” has the meaning
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set forth in Rule 405 under the Securities Act
and the “ Time of Sale Prospectus ” means the
preliminary prospectus, if any, together with the free writing
prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference
therein.
(B) The Registration Statement (and
any further documents to be filed with the Commission) contains all
exhibits and schedules as required by the Securities Act. Each of
the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material
respects with the Securities Act and the Exchange Act and the
applicable Rules and Regulations and did not and, as amended or
supplemented, if applicable, will not, contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, each as of its respective date,
comply in all material respects with the Securities Act and the
Exchange Act and the applicable Rules and Regulations. Each of the
Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, as amended or supplemented, did not and will
not contain as of the date thereof any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Incorporated Documents,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were
filed with the Commission, when read together with the other
information in the Registration Statement, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base
Prospectus or Prospectus Supplement), in light of the circumstances
under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base
Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, as
applicable, and, when read together with the other information in
the Registration Statement, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. No post-effective amendment
to the Registration Statement reflecting any facts or events
arising after the date thereof which represent, individually or in
the aggregate, a fundamental change in the information set forth
therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection
with the transaction contemplated hereby that have not been filed
as required pursuant to the Securities Act other than those that
will be filed within the requisite time period. There are no
contracts or other documents required to be described in the Base
Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the
Registration Statement, which have not been described or filed as
required.
(C) The Company is eligible to use
free writing prospectuses in connection with the Placement pursuant
to Rules 164 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. The
Company will not, without the prior consent of the Placement Agent,
prepare, use or refer to, any free writing prospectus.
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(D) The Company has delivered, or,
upon request, will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration
Statement and of each consent and certificate of experts, as
applicable, filed as a part thereof, and conformed copies of the
Registration Statement (without exhibits), the Base Prospectus, the
Time of Sale Prospectus, if any, and the Prospectus Supplement, as
amended or supplemented, in such quantities and at such places as
the Placement Agent reasonably request. Neither the Company nor any
of its directors and officers has distributed and none of them will
distribute, prior to the Closing Date, any offering material in
connection with the offering and sale of the Shares other than the
Base Prospectus, the Time of Sale Prospectus, if any, the
Prospectus Supplement, the Registration Statement, copies of the
documents incorporated by reference therein and any other materials
permitted by the Securities Act.
SECTION 3.
REPRESENTATIONS AND
WARRANTIES. Except as set forth in the Registration Statement
or the Prospectus Supplement, the Company hereby makes the
representations and warranties set forth below to the Placement
Agent.
(A) Organization and
Qualification . All of the direct and indirect subsidiaries
(individually, a “ Subsidiary ”) of the Company
are set forth on Schedule 3(A). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of
each Subsidiary free and clear of any “ Liens ”
(which for purposes of this Agreement shall mean a lien, charge,
security interest, encumbrance, right of first refusal, preemptive
right or other restriction), and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities. The Company and
each of the Subsidiaries is an entity duly incorporated or
otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization
(as applicable), with the requisite power and authority to own and
use its properties and assets and to carry on its business as
currently conducted. Neither the Company nor any Subsidiary is in
violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not reasonably be expected to result in
(i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material
adverse effect on the results of operations, assets, business, or
condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “ Material
Adverse Effect ”) and no “ Proceeding
” (which for purposes of this Agreement shall mean any
action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened) has been instituted
in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.
(B) Authorization;
Enforcement . The Company has the requisite corporate power and
authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to
carry out its obligations hereunder and thereunder. The execution
and delivery of each of the Transaction Documents by the Company
and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of
the Company and no further action is required by the Company, its
board of directors or its stockholders in connection therewith
other than in connection with the “ Required Approvals
” (as defined in subsection 3(D) below). Each Transaction
Document has been (or upon delivery will have been) duly executed
by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the valid and binding
obligation of the
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Company enforceable against the Company in
accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’
rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies.
(C) No Conflicts . The
execution, delivery and performance of the Transaction Documents by
the Company, the issuance and sale of the Securities and the
consummation by the Company of the other transactions contemplated
hereby and thereby do not and will not (i) conflict with or
violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, result in the
creation of any Lien upon any of the properties or assets of the
Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or
Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or
asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is
subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not reasonably be
expected to result in a Material Adverse Effect.
(D) Filings, Consents and
Approvals . The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state,
local or other governmental authority or other “Person”
(defined as an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind, including,
without limitation, any Trading Market (which, for purposes of this
Agreement shall mean the following markets or exchanges on which
the Common Stock is listed or quoted for trading on the date in
question: the Nasdaq Capital Market or the Nasdaq National Market)
in connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than such filings as
are required to be made under applicable Federal and state
securities laws (collectively, the “ Required
Approvals ”).
(E) Issuance of the Securities;
Registration . The Securities are duly authorized and, when
issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company
other than restrictions on transfer provided for in the Transaction
Documents. Prior to the Closing Date, the Company will have
reserved from its duly authorized capital stock the maximum number
of shares of Common Stock issuable pursuant to the Transaction
Documents. The Securities are being issued pursuant to the
Registration Statement and the issuance of the Securities has been
registered by the Company under the Securities Act. The
Registration Statement is effective and available for the issuance
of the Securities thereunder and the Company has not received any
notice that the Commission has issued or intends to issue a
stop-order with respect to the Registration Statement or that the
Commission otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently,
or intends or has threatened in writing to do so. The “Plan
of Distribution” section under the Registration Statement
permits the issuance and sale of the Securities hereunder. Upon
receipt of the Securities, the Purchasers will have good and
marketable title to such Securities and the Securities will be
freely tradable on the “ Trading Market
”.
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(F) Capitalization . The
capitalization of the Company is substantially as set forth in or
as incorporated by reference into the Registration Statement. No
Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the issuance
and sale of the Securities pursuant to the Transaction Documents.
Except as a result of the purchase and sale of the Securities,
other than pursuant to the exercise of employee stock options under
the Company’s stock option plans, the issuance of shares of
Common Stock to employees pursuant to the Company’s employee
stock purchase plan and pursuant to the conversion or exercise of
securities exercisable, exchangeable or convertible into Common
Stock (“ Common Stock Equivalents ”), there are
no outstanding options, warrants, script rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe
for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents. The issuance and sale of
the Securities will not obligate the Company to issue shares of
Common Stock or other securities to any Person (other than the
Purchasers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset
price under such securities. All of the outstanding shares of
capital stock of the Company are validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, and none of such outstanding shares was
issued in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. No further approval or
authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the
Securities. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s
stockholders.
(G) SEC Reports; Financial
Statements . The Company has complied in all material respects
with requirements to file all reports, schedules, forms, statements
and other documents required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a)
or 15(d) thereof, for the two years preceding the date hereof (the
foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively
refer
