Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of July
10, 2003, by and among Cytogen Corporation, a Delaware corporation (the
"Company"), and the purchasers identified on the signature pages hereto (each a
"Purchaser" and collectively the "Purchasers"); and
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act (as defined below), and Rule
506 promulgated thereunder, the Company desires to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company in the aggregate, up to $10,000,000 of the Company's Common
Stock and certain Warrants, as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agrees
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms have the
meanings indicated in this Section 1.1:
"Action" shall have the meaning ascribed to such term in Section
3.1(j).
"Affiliate" means any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under
common control with a Person as such terms are used in and construed
under Rule 144. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same
investment manager as such Purchaser will be deemed to be an Affiliate
of such Purchaser.
"Business Day" means any day except Saturday, Sunday and any day
which shall be a federal legal holiday or a day on which banking
institutions in the State of Delaware are authorized or required by
law or other governmental action to close.
"Closing" means the closing of the purchase and sale of the
Common Stock and Warrants pursuant to Section 2.1.
"Closing Date" means the date of the Closing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, $0.01 par
value per share, and any securities into which such common stock may
hereafter be reclassified.
"Common Stock Equivalents" means any securities of the Company or
the Subsidiaries which would entitle the holder thereof to acquire at
any time Common Stock, including without limitation, any debt,
preferred stock, rights, options, warrants or other instrument that is
at any time convertible into or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock.
"Company Counsel" means Hale and Dorr LLP, counsel to the
Company.
"Disclosure Schedules" means the Disclosure Schedules
concurrently delivered herewith.
"Disclosure Materials" shall have the meaning ascribed to such
term in Section 3.1(h).
"Effective Date" means the date that the Registration Statement
is first declared effective by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Intellectual Property Rights" shall have the meaning ascribed to
such term in Section 3.1(o).
"Liens" means a lien, charge, security interest, encumbrance,
right of first refusal or other restriction.
"Material Adverse Effect" shall have the meaning ascribed to such
term in Section 3.1(b).
"Material Permits" shall have the meaning ascribed to such term
in Section 3.1(m).
"Per Share Purchase Price" equals $8.53.
"Person" means 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.
"Registration Statement" means a registration statement meeting
the requirements set forth in the Registration Rights Agreement and
covering the resale by the Purchasers of the Shares and the Warrant
Shares.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement, by and among the
Company and the Purchasers, in the form of Exhibit B hereto.
"Rule 144," means Rule 144 promulgated by the Commission pursuant
to the Securities Act, as such Rules may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
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"SEC Reports" shall have the meaning ascribed to such term in
Section 3.1(h).
"Securities" means the Shares, the Warrants and the Warrant
Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock issued or issuable to
each Purchaser pursuant to this Agreement.
"Subscription Amount" means, as to each Purchaser, the amounts
set forth below such Purchaser's signature block on the signature page
hereto, in United States dollars and in immediately available funds.
"Subsidiary" shall have the meaning ascribed to such term in
Section 3.1(a).
"Trading Day" means (i) a day on which the Common Stock is traded
on a Trading Market, or (ii) if the Common Stock is not listed on a
Trading Market, a day on which the Common Stock is traded on the
over-the-counter market, as reported by the OTC Bulletin Board, or
(iii) if the Common Stock is not quoted on the OTC Bulletin Board, a
day on which the Common Stock is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or any
similar organization or agency succeeding its functions of reporting
prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
"Trading Market" means the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in
question: the American Stock Exchange, the New York Stock Exchange,
the Nasdaq National Market or the Nasdaq SmallCap Market.
"Transaction Documents" means this Agreement, the Registration
Rights Agreement, the Warrants and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
"Warrants" means the Common Stock Purchase Warrants, in the form
of Exhibit C, issuable to the Purchasers at the Closing, with a term
of exercise of 5 years beginning immediately upon issuance and an
exercise price equal to $12.80, subject to adjustment therein.
"Warrant Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. At the Closing, the Purchasers shall purchase, severally and
not jointly, and the Company shall issue and sell, in the aggregate, up to
$10,000,000 of Common Stock, together with the Warrants. Each Purchaser shall
purchase from the Company, and the Company shall issue and sell to each
Purchaser, (a) a number of Shares equal to such Purchaser's
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Subscription Amount divided by the Per Share Purchase Price and (b) the Warrants
as determined pursuant to Section 2.2(a).
2.2 Closing Conditions.
(a) At the Closing (unless otherwise specified below), the Company
shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) within 5 Trading Days of the Closing, a certificate
evidencing that number of Shares equal to such Purchaser's
Subscription Amount divided by the Per Share Purchase Price,
registered in the name of such Purchaser;
(iii) a legal opinion of Company Counsel, in the form of Exhibit
A hereto, addressed to the Purchasers;
(iv) the Registration Rights Agreement duly executed by the
Company; and
(v) a Warrant, registered in the name of such Purchaser, pursuant
to which such Purchaser shall have the right to acquire up to the
number of shares of Common Stock equal to 100% of the Shares to be
issued to such Purchaser at the Closing.
(b) At the Closing each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this Agreement duly executed by such;
(ii) such Purchaser's Subscription Amount by wire transfer to the
account of the Company per the written instructions of the Company;
and
(iii) the Registration Rights Agreement duly executed by such
Purchaser.
(c) As of the Closing Date, there shall have been no Material Adverse
Effect with respect to the Company since the date hereof.
(d) As of the Closing Date, trading in the Common Stock shall not have
been suspended by the Commission (except for any suspension of trading of
limited duration agreed to by the Company, which suspension shall be
terminated prior to the Closing).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth
under the corresponding section of the Disclosure Schedules or as set forth in
the SEC Reports, the Company hereby makes the following representations and
warranties as of the date hereof to each Purchaser:
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(a) Subsidiaries. The Company has no direct or indirect subsidiaries
("Subsidiaries"). The Company owns, directly or indirectly, all of the
capital stock of each Subsidiary free and clear of any lien, charge,
security interest, encumbrance, right of first refusal or other restriction
(collectively, "Liens"), and all the issued and outstanding shares of
capital stock of each Subsidiary are validly issued and are fully paid,
nonassessable and free of preemptive and similar rights.
(b) Organization and Qualification. Each of the Company and 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 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,
would not have or 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 financial condition of the Company and the
Subsidiaries, taken as a whole, or (iii) adversely impair 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").
(c) 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 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 in connection therewith. 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, will constitute the valid and binding obligation of the 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.
(d) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated 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, 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
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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) 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 would not
have or reasonably be expected to result in a Material Adverse Effect.
(e) 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 in connection with
the execution, delivery and performance by the Company of the Transaction
Documents, other than (a) the filing with the Commission of the
Registration Statement, the application(s) to each Trading Market for the
listing of the Shares and Warrant Shares for trading thereon in the time
and manner required thereby, and applicable Blue Sky filings; (b) obtaining
consent from its Trading Market to consummate the transaction without prior
stockholder approval; or (c) such as have already been obtained or such
exemptive filings as are required to be made under applicable securities
laws.
(f) Issuance of the Securities. The Securities are duly authorized and
the Shares and Warrant Shares, when issued and paid for in accordance with
the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens. The Company has reserved from
its duly authorized capital stock, the maximum number of shares of Common
Stock issuable pursuant to this Agreement and the Warrants.
(g) Capitalization. The capitalization of the Company is as described
in the Company's most recent periodic report filed with the Commission as
updated by any current report filed with the Commission thereafter. The
Company has not issued any capital stock since such filings 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, pursuant to the
conversion or exercise of outstanding Common Stock Equivalents and pursuant
to publicly disclosed equity financings. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction Documents.
Except as a result of the purchase and sale of the Securities, 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 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 securities or rights convertible or exchangeable into
shares of Common Stock. The issue 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
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holder of Company securities to adjust the exercise, conversion, exchange
or reset price under such securities.
(h) SEC Reports; Financial Statements. The Company has filed all
reports 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
three years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing
materials, including the exhibits thereto and incorporated by reference
therein, being collectively referred to herein as the "SEC Reports" and,
together with the Disclosure Schedules to this Agreement, the "Disclosure
Materials") on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved ("GAAP"), except
as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of
and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to
normal year-end audit adjustments.
(i) Material Changes. Since the date of the latest audited financial
statements included within the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected in the
Company's financial statements pursuant to GAAP or required to be disclosed
in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares
of its capital stock; (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company
stock option plans; and (vi) the Company has not had any disagreement with
its independent auditors that would require public disclosure.
(j) Litigation. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any
of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority
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(federal, state, county, local or foreign) (collectively, an "Action")
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or
(ii) could, if there were an unfavorable decision, have or reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor
any Subsidiary, nor any director or officer thereof, is or has been the
subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty.
There has not been, and to the knowledge of the Company, there is not
pending or contemplated, any investigation by the Commission involving the
Company or any current or former director or officer of the Company. The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act.
(k) Labor Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees
of the Company which could reasonably be expected to result in a Material
Adverse Effect.
(l) Compliance. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that has not
been waived that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received notice of a claim that it is in default under or that
it is in violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has been
waived), (ii) is in violation of any order of any court, arbitrator or
governmental body, or (iii) is or has been in violation of any statute,
rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its
business, except in the case of clauses (i), (ii) and (iii) as would not
have or reasonably be expected to result in a Material Adverse Effect.
(m) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the
failure to possess such permits would not have or reasonably be expected to
result in a Material Adverse Effect ("Material Permits"), and neither the
Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit.
(n) Title to Assets. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title in all personal property owned by them that is material to
the business of the Company and the Subsidiaries, in each case free and
clear of all Liens, except for Liens as do not materially affect the value
of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries
and Liens for the payment of federal, state or other taxes, the payment of
which is neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the
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Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases of which the Company and the Subsidiaries are in
compliance.
(o) Patents and Trademarks. To the knowledge of the Company and each
Subsidiary, the Company and the Subsidiaries have, or have rights to use,
all patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, licenses and other similar rights
that are necessary or material for use in connection with their respective
businesses as described in the SEC Reports and which the failure to so have
could have or reasonably be expected to result in a Material Adverse Effect
(collectively, the "Intellectual Property Rights"). Neither the Company nor
any Subsidiary has received a written notice that the Intellectual Property
Rights used by the Company or any Subsidiary violates or infringes upon the
rights of any Person. To the knowledge of the Company, all such
Intellectual Property Rights are enforceable.
(p) Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in
which the Company and the Subsidiaries are engaged. Neither the Company nor
any Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(q) Transactions With Affiliates and Employees. None of the officers
or directors of the Company and, to the knowledge of the Company, none of
the employees of the Company is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director,
trustee or partner, in each case in excess of $60,000 other than (a) for
payment of salary or consulting fees for services rendered, (b)
reimbursement for expenses incurred on behalf of the Company and (c) for
other employee benefits, including stock option agreements under any stock
option plan of the Company.
(r) Internal Accounting Controls. The Company and each of its
subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company
has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-14 and 15d-14) for the Company and designed such disclosures
controls and procedures to ensure that material information relating to the
Company, including its subsidiaries, is made known to the certifying
officers by others
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within those entities, particularly during the period in which the
Company's Form 10-K or 10-Q, as the case may be, is being prepared. The
Company's certifying officers have evaluated the effectiveness of the
Company's controls and procedures as of a date within 90 days prior to the
filing date of the Form 10-K for the fiscal year ended December 31, 2002
(such date, the "Evaluation Date"). The Company presented in its most
recently filed Form 10-K or Form 10-Q the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no significant changes in the Company's internal
controls (as such term is defined in Item 307(b) of Regulation S-K under
the Exchange Act) or, to the Company's knowledge, in other factors that
could significantly affect the Company's internal controls.
(s) Certain Fees. No brokerage or finder's fees or commissions are or
will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The
Purchasers shall have no obligation with respect to any fees or with
respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
(t) Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the
Securities by the Company to the Purchasers as contemplated hereby.
(u) Investment Company. The Company is not, and is not an Affiliate
of, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(v) Registration Rights. No Person has any right to cause the Company
to effect the registration under the Securities Act of any securities of
the Company.
(w) Listing and Maintenance Requirements. The Company has not, in the
12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the
effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and has no
reason to believe that it will not in the foreseeable future continue to
be, in compliance with all such listing and maintenance requirements.
(x) Application of Takeover Protections. The Company and its Board of
Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company's Certificate of Incorporation
(or similar charter documents) or the laws of its state of incorporation
that is or could become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including without limitation the
Company's issuance of the Securities and the Purchasers' ownership of the
Securities.
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(y) Disclosure. The Company confirms that, except as provided for
herein, neither the Company nor any other Person acting on its behalf has
provided any of the Purchasers or their agents or counsel with any
information that constitutes or might constitute material, non-public
information. The Company understands and confirms that the Purchasers will
rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. Subject to Section 3.2(h),
neither this Agreement, nor any Exhibit attached hereto provided to the
Purchasers regarding the Company, its business and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement,
furnished by or on behalf of the Company are true and correct and do not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
3.2 Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) Organization; Authority. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement has been duly
authorized by all necessary corporate action on the part of such Purchaser.
Each Transaction Document to which it is party has been duly executed by
such Purchaser, and when delivered by such Purchaser in accordance with
terms hereof, will constitute the valid and legally binding obligation of
such Purchaser, enforceable against it in accordance with its terms.
(b) Investment Intent. Such Purchaser understands that the Securities
are "restricted securities" and have not been registered under the
Securities Act or any applicable state securities law and is acquiring the
Securities as principal for its own account for investment purposes only
and not with a view to or for distributing or reselling such Securities or
any part thereof, has no present intention of distributing any of such
Securities and has no arrangement or understanding with any other persons
regarding the distribution of such Securities (this representation and
warranty not limiting such Purchaser's right to sell the Securities
pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring
the Securities hereunder in the ordinary course of its business. Such
Purchaser does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the Securities.
(c) Purchaser Status. At the time such Purchaser was offered the
Securities, it was, and at the date hereof it is an "accredited investor"
as defined in Rule 501(a) under the Securities Act. Such Purchaser (if not
already a registered broker-dealer under Section 15 of the Exchange Act) is
not required to be registered as a broker-dealer under Section 15 of the
Exchange Act.
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(d) Experience of such Purchaser. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of
such investment.
(e) General Solicitation. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement.
(f) Certain Fees. No brokerage or finder's fees or commissions are or
will be payable by such Purchaser to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The
Company shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
(g) Acquiring Person. Such Purchaser, after giving effect to the
transactions contemplated hereby, will not, either individually or with a
group (as defined in Section 13(d)(3) of the Exchange Act), be the
beneficial owner of 20% or more of the Company's outstanding Common Stock.
For purposes of this Section 3.2(g), beneficial ownership shall be
determined pursuant to a Rule 13d-3 under the Exchange Act.
(h) Material Information. Such Purchaser acknowledges that the Company
may have material non-public information with respect to, among other
things, the Company's results of operations for the quarter ended June 30,
2003 that has not yet been publicly disclosed or disclosed in the
Disclosure Materials. Such Purchaser acknowledges that it has requested
that the Company not disclose such information to it.
The Company acknowledges and agrees that each Purchaser does not make or
has not made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions. (a) The Securities may only be disposed of in
compliance with state and federal securities laws. In connection with any
transfer of Securities other than pursuant to an effective registration
statement, to the Company, to an Affiliate of a Purchaser or in connection with
a pledge as contemplated in Section 4.1(b), the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act. As a
condition of transfer, any such transferee shall agree in writing to be bound by
the terms of this Agreement and
-12-
shall have the rights of a Purchaser under this Agreement and the
Registration Rights Agreement.
(b) The Purchasers agree to the imprinting, so long as is required by
this Section 4.1(b), of a legend on any of the Securities in the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a) UNDER THE SECURITIES
ACT.
The Company acknowledges and agrees that a Purchaser may from time to
time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities
to a financial institution that is an "accredited investor" as defined in
Rule 501(a) under the Securities Act and, if required under the terms of
such arrangement, such Purchaser may transfer pledged or secured Securities
to the pledgees or secured parties. Such a pledge or transfer would not be
subject to approval of the Company and no legal opinion of legal counsel of
the pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At the
appropriate Purchaser's expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Securities may
reasonably request in connection with a pledge or transfer of the
Securities, including the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder.
(c) Certificates evidencing the Shares and Warrant Shares shall not
contain any legend (including the legend set forth in Section 4.1(b)), (i)
while a registration statement (including the Registration Statement)
covering the resale of such security is effective under the Securities Act
and such security has been sold pursuant to such registration statement, or
(ii) following any sale of such Shares or Warrant Shares pursuant to Rule
144, or (iii) if such Shares or Warrant Shares are eligible for sale under
Rule 144(k), or (iv) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the Staff
-13-
of the Commission). The Company shall cause its counsel to issue a legal
opinion to the Company's transfer agent promptly after the Effective Date
if required by the Company's transfer agent to effect the removal of the
legend hereunder. The Company agrees that following the Effective Date or
at such time as such legend is no longer required under this Section
4.1(c), it will, no later than seven Trading Days following the delivery by
a Purchaser to the Company or the Company's transfer agent of: (i) a
certificate representing Shares or Warrant Shares, as the case may be,
issued with a restrictive legend; and (ii) any other documentation
reasonably requested by the Company, its counsel or its transfer agent,
deliver or cause to be delivered to such Purchaser a certificate
representing such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give
instructions to any transfer agent of the Company that enlarge the
restrictions on transfer set forth in this Section.
4.2 Furnishing of Information. As long as any Purchaser owns Securities,
the Company covenants to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed by
the Company after the date hereof pursuant to the Exchange Act. Upon the request
of any such holder of Securities, the Company shall deliver to such holder a
written certification of a duly authorized officer as to whether it has complied
with the preceding sentence. As long as any Purchaser owns Securities, if the
Company is not required to file reports pursuant to such laws, it will prepare
and furnish to the Purchasers and make publicly available in accordance with
Rule 144(c) such information as is required for the Purchasers to sell the
Securities under Rule 144. The Company further covenants that it will take such
further action as any holder of Securities may reasonably request, all to the
extent required from time to time to enable such Person to sell such Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144.
4.3 Securities Laws Disclosure; Publicity. The Company shall, within 3
Trading Days of the Closing Date, issue a press release or file a Current Report
on Form 8-K, in each case reasonably acceptable to each Purchaser disclosing the
transactions contemplated hereby and make such other filings and notices in the
manner and time required by the Commission. The Company and each Purchaser shall
consult with each other in issuing any press releases with respect to the
transactions contemplated hereby, and neither the Company nor any Purchaser
shall issue any such press release or otherwise make any such public statement
without the prior consent of the Company, with respect to any press release of
any Purchaser, or without the prior consent of each Purchaser, with respect to
any press release of the Company, which consent shall not unreasonably be
withheld, except if such disclosure is required by relevant securities or other
laws, in which case the disclosing party shall promptly provide the other party
with prior notice of such public statement or communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser, or
include the name of any Purchaser in any filing with the Commission or any
regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (i) as required by federal securities law in connection with
the registration statement contemplated by the Registration Rights Agreement and
(ii) to the extent such disclosure is required by law or Trading Market
regulations.
4.4 Shareholders Rights Plan. The Purchaser is not an "Acquiring Person"
under any shareholders rights plan or similar plan or arrangement in effect.
-14-
4.5 Future Sales of Common Stock. Subject to its fiduciary responsibilities
to its stockholders, the Company covenants and agrees that it will not issue any
of its Common Stock at a price less than the Per Share Purchase Price until such
time as the Registration Statement is declared effective by the Commission;
provided, that, this Section 4.5 shall not apply to any issuance of Common Stock
pursuant to any agreement made prior to the Closing Date, including, but not
limited to, any warrant, option or other security convertible into Common Stock
or any Common Stock issued pursuant to any employee stock option plan, stock
option plan for non-employee directors, employee stock purchase plan or any
other plan that provides incentive stock grants to the Company's employees,
directors, consultants or agents.
4.6 Use of Proceeds. The Company shall use the net proceeds from the sale
of the Shares hereunder to reacquire the marketing rights to Quadramet from
Berlex Laboratories, Inc. ("Berlex") pursuant to that certain Termination
Agreement, dated June 16, 2003, by and between the Company and Berlex and
related expenses and not for the satisfaction of any portion of the Company's
debt, to redeem any Company equity or equity-equivalent securities or to settle
any outstanding litigation.
4.7 Indemnification of Purchasers. The Company will indemnify and hold the
Purchasers and their directors, officers, shareholders, partners, employees and
agents (each, a "Purchaser Party") harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable
attorneys' fees and costs of investigation that any such Purchaser Party may
suffer or incur as a result of or relating to any misrepresentation, breach or
inaccuracy, or any allegation by a third party that, if true, would constitute a
breach or inaccuracy, of any of the representations, warranties, covenants or
agreements made by the Company in this Agreement or in the other Transaction
Documents. The Company will reimburse such Purchaser for its reasonable legal
and other expenses (including the cost of any investigation, preparation and
travel in connection therewith) incurred in connection therewith, as such
expenses are incurred.
4.8 Reservation of Common Stock. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue Shares pursuant to this
Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.9 Listing of Common Stock. The Company hereby agrees to use commercially
reasonable efforts to maintain the listing of the Common Stock on the Trading
Market, and as soon as reasonably practicable following the Closing (but not
later than the earlier of the Effective Date and the first anniversary of the
Closing Date) to list the applicable Shares and Warrant Shares on the Trading
Market. The Company further agrees, if the Company applies to have the Common
Stock traded on any other Trading Market, it will include in such application
the Shares and the Warrant Shares, and will take such other action as is
necessary or desirable in the opinion of the Purchasers to cause the Shares and
Warrant Shares to be listed on such other Trading Market as promptly as
possible. The Company will take all action reasonably necessary to continue the
listing and trading of its Common Stock on a Trading Market and will comply in
-15-
all respects with the Company's reporting, filing and other obligations under
the bylaws or rules of the Trading Market.
ARTICLE V.
MISCELLANEOUS
5.1 Entire Agreement. The Transaction Documents, together with the exhibits
and schedules thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules. The
Disclosure Schedules are incorporated by reference herein and are included as
part of the Transaction Documents.
5.3 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified on the signature pages hereto prior to 6:30 p.m. (New York City time)
on a Trading Day, (b) the next Trading Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified on the signature pages hereto on a day that is not a Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading
Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
5.4 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and Purchasers holding a majority of the Shares sold hereunder or,
in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
5.5 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
5.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser. Any Purchaser may assign
any or all of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Securities, provided such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the
provisions hereof that apply to the "Purchasers".
-16-
5.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
5.8 Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and
any other Transaction Documents (whether brought against a party hereto or its
respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the
State of Delaware. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the State of Delaware
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of the any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party hereto
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
Each party hereto (including its affiliates, agents, officers, directors and
employees) hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence an action or proceeding to enforce any
provisions of a Transaction Document, then the prevailing party in such action
or proceeding shall be reimbursed by the other party for its attorneys fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
5.9 Survival. The representations, warranties, agreements and covenants
contained herein shall survive the Closing for a period of 1 year from the
Closing Date.
5.10 Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
5.11 Severability. If any provision of this Agreement is held to be invalid
or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
-17-
5.12 Replacement of Securities. If any certificate or instrument evidencing
any Securities is mutilated, lost, stolen or destroyed, the Company shall issue
or cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
5.13 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
5.14 Payment Set Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
5.15 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of the Transaction Documents.
(Signature Page Follows)
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
CYTOGEN CORPORATION Address for Notice:
------------------
650 College Road East
CN 5308
Suite 3100
By:/s/ Michael D. Becker Princeton, New Jersey 08540
-----------------------------------
Name: Michael D. Becker Attn: Donald Novajosky
Title: President and Chief Executive Officer Tel: 609-750-8222
Fax: 609-452-2315
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
STUART T. WEISBROD, IRA
- ------------------------------- Address for Notice:
Print Entity Name ------------------
c/o Merlin BioMed Group
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Stuart T. Weisbrod Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Stuart T. Weisbrod Fax: 646-227-5201
Print Title:
Subscription Amount: $98,095
-------------------
Shares Purchased: 11,500
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MERLIN BIOMED LONGTERM APPRECIATION FUND, L.P.
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Norman Schleifer Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Norman Schleifer Fax: 646-227-5201
Print Title: CFO
Subscription Amount: $127,950
-------------------
Shares Purchased: 15,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
STUART T. WEISBROD
- ------------------------------- Address for Notice:
Print Entity Name ------------------
c/o Merlin BioMed Group
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Stuart T. Weisbrod Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Stuart T. Weisbrod Fax: 646-227-5201
Print Title:
Subscription Amount: $145,010
-------------------
Shares Purchased: 17,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MERLIN BIOMED INT'L LIMITED
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Norman Schleifer Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Norman Schleifer Fax: 646-227-5201
Print Title: CFO
Subscription Amount: $330,290.13
-------------------
Shares Purchased: 38,721
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MERLIN BIOMED II, L.P.
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Norman Schleifer Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Norman Schleifer Fax: 646-227-5201
Print Title: CFO
Subscription Amount: $213,250
-------------------
Shares Purchased: 25,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MERLIN BIOMED OFFSHORE MASTER FUND, L.P.
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Norman Schleifer Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Norman Schleifer Fax: 646-227-5201
Print Title: CFO
Subscription Amount: $980,950
-------------------
Shares Purchased: 115,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MERLIN BIOMED, L.P.
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, Suite 928
New York, NY 10169
By:/s/ Norman Schleifer Attn: Norman Schleifer
-------------------------------------- Tel: 646-227-5200
Print Name: Norman Schleifer Fax: 646-227-5201
Print Title: CFO
Subscription Amount: $554,450
-------------------
Shares Purchased: 65,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE POST VENTURE III, LP
- ----------------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $301,962
-------------------
Shares Purchased: 35,400
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE INTEGRATED HOLDINGS IV POST VENTURE, LP
- ---------------------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue
30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $307,080
-------------------
Shares Purchased: 36,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE NETHERLANDS II, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue
30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $168,041
-------------------
Shares Purchased: 19,700
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE INTEGRATED HOLDINGS, V, LP
- ----------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue
30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $423,710.69
-------------------
Shares Purchased: 49,673
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE POST VENTURE IV L.P.
- --------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue
30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $519,477
-------------------
Shares Purchased: 60,900
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE VENTURE CAPITAL III LP
- --------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $20,472
-------------------
Shares Purchased: 2,400
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE VENTURE CAPITAL IV L.P.
- --------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $47,768
-------------------
Shares Purchased: 5,600
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE INTEGRATED HOLDINGS II LIMITED
- ------------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $321,581
-------------------
Shares Purchased: 37,700
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE NETHERLANDS III - LP
- ------------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $47,768
-------------------
Shares Purchased: 5,600
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
KNIGHTSBRIDGE NETHERLAND I LP
- ----------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Sven H. Borho Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Sven H. Borho Fax: 212-739-6444
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $188,513
-------------------
Shares Purchased: 22,100
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
HFR SHC AGGRESSIVE FUND
- ------------------------------------------- Address for Notice:
Print Entity Name ------------------
OrbiMed Advisors LLC
767 Third Avenue, 30th Floor
New York, NY 10017
By:/s/ Dora Hines Attn: Andrew Kanarek
-------------------------------------- Tel: 212-739-6406
Print Name: Dora Hines Fax: 212-739-6444
Print Title: Dora Hines for & on behalf of
HFR Asset Management, LLC as
attorney in fact
Subscription Amount: $153,540
-------------------
Shares Purchased: 18,000
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
HIGHWAY PARTNERS, LP
- ----------------------------- Address for Notice:
Print Entity Name ------------------
Principled Capital Management
666 Fifth Avenue, 34th Fl.
NY, NY 10103
By:/s/ Gerald Catenacci Attn: Jessica Stern
-------------------------------------- Tel: 212-484-5045
Print Name: Gerald Catenacci Fax: 212-484-5039
Print Title: Managing Member
Subscription Amount: $70,466.33
-------------------
Shares Purchased: 8,261
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
THRUWAY PARTNERS, LP
- ----------------------------- Address for Notice:
Print Entity Name ------------------
Principled Capital Management
666 Fifth Avenue, 34th Fl.
NY, NY 10103
By:/s/ Gerald Catenacci Attn: Jessica Stern
-------------------------------------- Tel: 212-484-5045
Print Name: Gerald Catenacci Fax: 212-484-5039
Print Title: Managing Member
Subscription Amount: $240,767.78
-------------------
Shares Purchased: 28,226
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
EXPRESSWAY PARTNERS, LTD
- ----------------------------- Address for Notice:
Print Entity Name ------------------
Principled Capital Management
666 Fifth Avenue, 34th Fl.
NY, NY 10103
By:/s/ Gerald Catenacci Attn: Jessica Stern
-------------------------------------- Tel: 212-484-5045
Print Name: Gerald Catenacci Fax: 212-484-5039
Print Title: Managing Member
Subscription Amount: $438,757.61
-------------------
Shares Purchased: 51,437
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
DELTA OPPORTUNITY FUND, LTD.
- ----------------------------- Address for Notice:
Print Entity Name ------------------
950 3rd Avenue
Diaz & Altschul Advisors, LLC, 16th Floor
As Investment Advisor New York, NY 10022
By:/s/ Christopher S. Mooney Attn: Chris Mooney
-------------------------------------- Tel: 212-751-1011
Print Name: Christopher S. Mooney Fax: 212-751-5757
Print Title: Partner; OrbiMed Advisors LLC
Subscription Amount: $300,000.10
-------------------
Shares Purchased: 35,170
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
DELTA OPPORTUNITY FUND (INSTITUTIONAL), LLC
- ------------------------------------------- Address for Notice:
Print Entity Name ------------------
950 3rd Avenue
Diaz & Altschul Management, LLC, 16th Floor
As Managing Member New York, NY 10022
By:/s/ Christopher S. Mooney Attn: Chris Mooney
-------------------------------------- Tel: 212-751-1011
Print Name: Christopher S. Mooney Fax: 212-751-5757
Print Title: Chief Financial Officer
Subscription Amount: $199,994.38
-------------------
Shares Purchased: 23,446
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
THE TROUT GROUP LLC
- ----------------------------- Address for Notice:
Print Entity Name ------------------
740 Broadway, Suite 903
New York, NY 10003
By:/s/ Jonathan Fassberg Attn: Jonathan Fassberg
-------------------------------------- Tel: 212-477-9007
Print Name: Jonathan Fassberg Fax: 212-460-9028
Print Title: President
Subscription Amount: $50,113.75
-------------------
Shares Purchased: 1,172,346
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
DOMAIN PUBLIC EQUITY PARTNERS, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
by Domain Public Equity Associates, L.L.C.
By:/s/ Nicole Vitullo Attn: Nicole Vitullo
-------------------------------------- Tel: 609-683-5656
Print Name: Nicole Vitullo Fax: 609-683-9789
Print Title: Managing Member
Subscription Amount: $999,997.49
-------------------
Shares Purchased: 117,233
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
CLSP, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, 20th Fl.
NY, NY 10169
By:/s/ Jeffrey Casdin Attn: Peter Freer
-------------------------------------- Tel: 212-351-1970
Print Name: Jeffrey Casdin Fax: 212-351-1946
Print Title: GP
Subscription Amount: $327,688.48
-------------------
Shares Purchased: 38,416
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
CLSP II, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, 20th Fl.
NY, NY 10169
By:/s/ Jeffrey Casdin Attn: Peter Freer
-------------------------------------- Tel: 212-351-1970
Print Name: Jeffrey Casdin Fax: 212-351-1946
Print Title: GP
Subscription Amount: $273,275.61
-------------------
Shares Purchased: 32,037
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
CLSP SBS - I, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, 20th Fl.
NY, NY 10169
By:/s/ Jeffrey Casdin Attn: Peter Freer
-------------------------------------- Tel: 212-351-1970
Print Name: Jeffrey Casdin Fax: 212-351-1946
Print Title: GP
Subscription Amount: $122,243.43
-------------------
Shares Purchased: 14,331
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
CLSP SBS - II, L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, 20th Fl.
NY, NY 10169
By:/s/ Jeffrey Casdin Attn: Peter Freer
-------------------------------------- Tel: 212-351-1970
Print Name: Jeffrey Casdin Fax: 212-351-1946
Print Title: GP
Subscription Amount: $42,052.90
-------------------
Shares Purchased: 4,930
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
CLSP OVERSEAS LTD.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
230 Park Avenue, 20th Fl.
NY, NY 10169
By:/s/ Jeffrey Casdin Attn: Peter Freer
-------------------------------------- Tel: 212-351-1970
Print Name: Jeffrey Casdin Fax: 212-351-1946
Print Title: GP
Subscription Amount: $234.737.07
-------------------
Shares Purchased: 27,519
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
MILLENCO L.P.
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
Millenco L.P.
666 Fifth Avenue, 8th Floor
New York, NY 10103
By:/s/ Robert Williams Attn: Terry Feeney
-------------------------------------- Tel: 212-841-4100
Print Name: Robert Williams Fax: 212-841-4141
Print Title: CFO
Subscription Amount: $749,991.72
-------------------
Shares Purchased: 87,924
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
c/o Merrill Lynch
Professional Clearing Corp.
222 Broadway, 6th Floor
New York, New York 10008
TIN: 13-3247006
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
VERTICAL VENTURES INVESTMENTS, LLC
- ----------------------------------- Address for Notice:
Print Entity Name ------------------
641 Lexington Avenue, 26th Fl.
NY, NY 10022
By:/s/ Joshua Silverman Attn: Joshua Silverman
-------------------------------------- Tel: 212-974-3070
Print Name: Joshua Silverman Fax: 212-207-3452
Print Title: Manager
Subscription Amount: $999,997.49
-------------------
Shares Purchased: 117,233
-----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)