ADDENDUM NO. 2
TO
STOCK EXCHANGE AGREEMENT
AMONG CYTOGEN CORPORATION AND
THE STOCKHOLDERS AND DEBTHOLDERS OF PROSTAGEN, INC.
This Addendum No. 2 (this "Addendum"), dated as of November 19, 2004, to
the Stock Exchange Agreement dated as of June 15, 1999, as amended (the
"Agreement"), among Cytogen Corporation, a Delaware corporation ("Cytogen"), and
the stockholders and debtholders (collectively, the "Prostagen Partners") of
Prostagen, Inc., a Delaware corporation.
WHEREAS, on June 15, 1999, Cytogen and the Prostagen Partners executed the
Agreement; and
WHEREAS, on May 14, 2002, Cytogen and the Prostagen Partners executed an
Addendum to the Agreement ("Addendum No. 1"); and
WHEREAS, on August 8, 2004, Cytogen and the Prostagen Partners executed an
Amendment No. 1 to Addendum No. 1 (the "Amendment"); and
WHEREAS, certain questions have arisen between Cytogen and the Prostagen
Partners regarding Cytogen's obligations under Paragraph 2 of Addendum No. 1.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties mutually agree as follows:
1. All defined terms utilized herein, unless otherwise defined herein, shall
have the meaning ascribed thereto in the Agreement.
2. Paragraph 2 of Addendum No.1 is hereby amended and restated in its entirety
to read as follows:
"In satisfaction of its obligations to Prostagen Partners under Paragraphs
1.6(b) and (d) of the Stock Exchange Agreement, Cytogen shall deliver to
Representative: (i) a number of Purchaser Shares equal to $500,000 divided
by the Conversion Number (recomputed as of the date of such delivery)
within ten business days of the date hereof; (ii) a number of Purchaser
Shares equal to $500,000 divided by the Conversion Number (recomputed as of
the date of such delivery) within ten business days after the completion by
PSMA Development Company, LLC (or any entity with technology licensed from
Cytogen) of a Phase I clinical trial for immunotherapy for prostate cancer
if such trial establishes safety; and (iii) a number of Purchaser Shares
equal to $1,000,000 divided by the Conversion Number (recomputed as of the
date of such delivery) within ten
business days after the enrollment of the first patient after the date
hereof by PSMA Development Company, LLC (or any entity with technology
licensed from Cytogen) in a Phase III or combined Phase II-III clinical
trial for immunotherapy for prostate cancer. Cytogen shall provide the
Representative with quarterly reports on the status of the immunotherapy
research program. The Representative will provide Cytogen with instructions
as to how the Purchaser Shares shall be issued. For purposes of clause (ii)
above, the Phase I trial shall be deemed complete upon issuance of the
final study report. Cytogen will promptly provide to Representative such
study report as soon as it is available. In the event no study report is
issued with respect to the Phase I trial, the Phase I trial shall be deemed
complete 60 days after the final follow-up with the last patient as
specified in the protocol. Such Phase I clinical trial shall be deemed to
have established safety if it supports the preliminary findings of safety
announced at ASCO in June 2004. If there is a disagreement between Cytogen
and Representative as to whether the full study supports the preliminary
findings, the parties shall designate a mutually acceptable third party who
will have the authority to conclusively resolve the dispute. The Purchaser
Shares to be delivered pursuant to clause (i) above shall be free of any
and all restrictions and available for sale immediately upon delivery.
In connection with its obligations under this Paragraph 2, Cytogen hereby
agrees that on each date it reasonably determines that, within thirty (30)
days of such date a payment will become due and payable to the Prostagen
Partners, Cytogen shall: (i) notify the Representative of the date on which
Cytogen believes such payment shall become due and payable; (ii) begin to
prepare all requisite filings and begin to take all actions reasonably
required to effect the registration of such shares to be so issued; and
(iii) request from the Representative such information as Cytogen deems
necessary to effect the registration of such shares. Cytogen further agrees
to make any and all filings required to be made by it in order to effect
the registration of shares to be issued pursuant to this Paragraph 2 as
soon as reasonably practicable after the issuance of such shares."
3. Cytogen hereby authorizes Prostagen Partners to solicit, on behalf of
Cytogen, licensees for the technology (the "Technology") that was the
subject of the PSMA Sublicense Agreement by and between Cytogen Corporation
and Northwest Biotherapeutics dated August 28, 2000. Such authorization
shall be terminable by Cytogen at any time upon written notice to Prostagen
Partners. Cytogen agrees to negotiate in good faith with any bona fide
potential licensee approached by Prostagen Partners; provided that Cytogen
is under no obligation to enter into any agreement with any such potential
licensee with respect to the Technology. Cytogen and Prostagen Partners
agree that any revenue generated from the Technology shall be subject to
the provisions of Paragraph 3 of Addendum No.1.
4. Prostagen Partners agree that Cytogen has satisfied its obligations under
the second paragraph of Paragraph 2 of Addendum No.1 (as amended above) in
connection with this Addendum.
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5. All other provisions of the Agreement, as amended or supplemented through
the date hereof, shall remain in full force and effect. Any reference to
the Agreement in any instrument or agreement shall mean and include the
Agreement as amended by Addendum No. 1, the Amendment and this Addendum.
6. This Addendum constitutes the entire understanding between the parties,
except as expressly set forth herein, and supersedes any contracts,
agreements or understanding (oral or written) of the parties with respect
to the subject matter hereof. No term of this Addendum may be amended
except upon written agreement of both parties.
7. Each party shall be responsible for its own costs and expenses including,
but not limited to, any legal, advisory fees and accounting fees and costs
incurred in connection with negotiation, preparation and carrying out the
terms of this Addendum.
8. This Addendum shall be governed by and construed in accordance with the
laws of the State of New York.
9. This Addendum may be executed in one or more counterparts, each of which
will be deemed an original but all of which together will constitute one
and the same instrument.
In witness whereof, the duly authorized representatives of the parties have
executed this Addendum as of the date set forth above.
CYTOGEN CORPORATION PROSTAGEN PARTNERS
By: /s/ Michael D. Becker By: /s/ Allan M. Fox
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Michael D. Becker, President Allan M. Fox, Representative
And Chief Executive Officer
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