EXHIBIT 10.89
PEREGRINE PHARMACEUTICALS, INC.
COMMON STOCK
PURCHASE AGREEMENT
UP TO 1,600,000 SHARES OF
COMMON STOCK
JUNE 26, 2003
COMMON STOCK PURCHASE AGREEMENT
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This Common Stock Purchase Agreement (this "Agreement") is made and entered into
as of June 26, 2003, by and between Peregrine Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and the Investors set forth on Schedule I hereto
(each an "Investor", collectively, the "Investors").
RECITALS
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WHEREAS, the Company has filed with the Securities and Exchange Commission
("SEC") a Shelf Registration Statement on Form S-3 No. 333-103965, which was
declared effective by the SEC on March 31, 2003 (the "Form S-3").
WHEREAS, pursuant to the Form S-3, the Company may offer to the public from time
to time up to 10,000,000 shares of common stock, par value $0.001 per share (the
"Common Stock").
WHEREAS, the Company desires to sell and issue to the Investors under the Form
S-3 an aggregate of One Million Six Hundred Thousand (1,600,000) shares of
Common Stock at the per share price of $1.15, in exchange for the Investors'
payment of the aggregate sum of up to One Million Eight Hundred Forty Thousand
Dollars ($1,840,000).
WHEREAS, in connection herewith, the Company desires to grant to the Investors
an irrevocable right to purchase from the Company pursuant to the Form S-3 at
any time during a period of six (6) months from the Closing Date (as defined
below) up to an additional 1,600,000 shares of Common Stock at a per share price
of $1.15.
NOW, THEREFORE, in consideration of the covenants, agreements and considerations
herein contained, the Company and Investor agree as follows:
1. PURCHASE AND SALE OF SHARES
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1.1 TRANSFER OF SHARES. Subject to the terms and conditions hereof, the
Company agrees to sell to the Investors, and the Investors agree to purchase
from the Company in the respective amounts set forth on Schedule I, an aggregate
of up to 1,600,000 shares of the Company's Common Stock (the "Shares"). On the
Closing Date, the Company shall instruct its transfer agent to transfer the
Shares via DWAC to each Investor, in the name of such Investor or its nominee,
representing the Shares purchased by such Investor.
1.2 PURCHASE PRICE. As full consideration for the sale of the Shares to
Investors, the Investors shall deliver to the Company on the Closing Date by
wire transfer of immediately available funds to such account as the Company
shall designate the sum of One Million Eight Hundred Forty Thousand Dollars
($1,840,000) (the "Purchase Price"), representing a per share purchase price of
$1.15 per share (the "Per Share Price").
1.3 PURCHASE RIGHT. (a) In connection with the Investors' purchase of
the Shares, the Company hereby grants to each Investor the irrevocable right to
purchase from the Company in the respective amounts set forth on Schedule I, up
to an additional 1,600,000 shares of the Company's Common Stock at a per share
purchase price of $1.15 (the "Additional Shares"). An Investor may exercise its
respective right under this Section 1.3 by delivery of written notice to the
Company specifying the number of Additional Shares purchased and accompanied by
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cash in the amount of the applicable purchase price. Within three (3) trading
days following the due exercise of an Investor's right to purchase Additional
Shares, the Company shall issue stock certificates evidencing such Additional
Shares to such Investor. This right to purchase Additional Shares shall expire
on the date which is six (6) months following the Closing Date (as defined
below).
(b) No Investor shall have the right to assign its rights
under this Section 1.3 without the prior written consent of the Company.
(c) The Company shall not avoid or seek to avoid the
observance or performance of any of the terms of this Section 1.3, but shall at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Investors against impairment.
(d) The Company shall keep reserved a sufficient number of
shares of the authorized and unissued shares of Common Stock, to provide for the
exercise of the rights under this Section 1.3. The Company shall keep the Shares
and Additional Shares authorized for quotation on Nasdaq (or such other exchange
or national securities association on which the Common Stock may then be
traded).
2. CLOSING.
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2.1 TIME. Subject to terms and provisions herein, the purchase and sale
of the Shares shall take place on June 25, 2003 (the "Closing Date") at the
offices of Falk, Shaff & Ziebell, LLP located at 18881 Von Karman Avenue, Suite
1400, Irvine, California 92612, or such other location as the parties may
individually agree.
2.2 DELIVERIES AT AND FOLLOWING THE CLOSING DATE. Upon the Company's
receipt of Purchase Price, the Company shall deliver all Shares, consents,
assignments and other instruments and documents provided for in this Agreement.
In addition, the Company agrees to execute and deliver all instruments and
documents and perform all other acts which may be reasonably required or
appropriate in order to further effect or perfect the sale and transfer of the
Shares and the consummation of the transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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Except as set forth below, the Company makes no representations or warranties of
any nature or kind.
3.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has the corporate power to own its properties and to carry
on its business as now being conducted and is duly qualified to do business and
is in good standing in each jurisdiction in which the failure to be so qualified
would have a material adverse effect on the business, assets or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole.
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3.2 CAPITALIZATION. The authorized capital stock of the Company
consists of 175,000,000 shares of common stock, par value $0.001 per share, and
5,000,000 shares of preferred stock, par value $0.001 per share, of which, as of
June 23, 2003, there were approximately 125,162,000 shares of common stock and
nil shares of preferred stock, issued and outstanding. The Company is not a
party to any voting trust agreements or understandings with respect to the
voting common stock of the Company.
3.3 AUTHORIZATION.
3.3.1 The Company has full legal right, power and capacity to
enter into, execute, deliver and perform this Agreement and all attendant
documents and instruments contemplated hereby.
3.3.2 This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Company and is
enforceable with respect to the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, priority or other laws or
court decisions relating to or affecting generally the enforcement of creditors'
rights or affecting generally the availability of equitable remedies.
3.3.3 The execution and delivery of this Agreement by the
Company, and the consummation of the transactions contemplated hereby by the
Company in accordance with the terms hereof shall not conflict with or result in
a breach of, violation of, or default under (or constitute an event that with
notice, lapse of time, or both, would constitute a breach or default under), or
result in the termination of, or accelerate the performance required by, or
result in the creation of any liens or other encumbrances upon any of the
properties or assets of the Company under any of the terms, conditions or
provisions of the Certificate of Incorporation or Bylaws, any provision of the
laws of the State of California or the State of Delaware, or any note, bond,
mortgage, indenture, deed of trust, license, lease, credit agreement or other
agreement, document, instrument or obligation to which the Company is a party or
by which any of its assets or properties are bound.
3.3.4 Neither the execution and delivery of this Agreement by
the Company, nor the consummation of the transactions, contemplated hereunder by
the Company will violate or conflict with any judgment, order, decree, statute,
rule or regulation applicable to the Company or its assets or properties.
3.4 VALID ISSUANCE OF COMMON STOCK.
3.4.1 The Shares being purchased by the Investor hereunder and
the Additional Shares upon exercise of the right set forth in Section 1.3, when
issued, sold and delivered in accordance with the terms hereof or thereof, for
the consideration expressed herein or therein, will be duly and validly issued,
fully paid and nonassessable and will be issued in compliance with all
applicable federal and state securities laws.
3.4.2 The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were issued in
compliance with all applicable federal and state securities laws.
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3.4.3 The Company has full power, right and authority to
transfer, convey and sell to the Investors on the Closing Date the Shares and
upon consummation of the transactions contemplated by this Agreement, each
Investor will have acquired good and marketable title to the Shares purchased by
such Investor, free and clear of claims, liens, restrictions on transfer or
voting or encumbrances.
3.4.4 The Company has reserved for issuance a sufficient
number of shares of the authorized and unissued shares of Common Stock to
provide for the issuance of the Additional Shares. Each Investor that exercises
its right to purchase Additional Shares will acquire good and marketable title
to the Additional Shares purchased by such Investor, free and clear of claims,
liens, restrictions on transfer or voting or encumbrances.
3.4.5 The Company has taken the requisite action to cause the
Shares and the Additional Shares to be listed on the Nasdaq SmallCap Market.
3.5 LITIGATION. Except as referred to in the SEC Documents, as defined
below, the Form S-3, or as disclosed in Schedule 3.5, there are no claims,
suits, actions or proceedings pending or, to the knowledge of the Company,
threatened against, relating to or affecting the Company or any of its
subsidiaries, before any court, governmental department, commission, agency,
instrumentality or authority, or any arbitrator that would reasonably be
expected, either alone or in the aggregate with all such claims, actions or
proceedings, to have a material adverse effect on the Company's business or
financial condition or the transactions contemplated hereunder. Except as
referred to in the Company's SEC Documents, neither the Company nor any of its
subsidiaries is subject to any judgment, decree, injunction, rule or order of
any court, governmental department, commission, agency, instrumentality or
authority, or any arbitrator which prohibits or restricts the consummation of
the transactions contemplated hereby or would have a material adverse effect on
the Company's business or financial condition or the transactions contemplated
hereunder.
3.6 SEC DOCUMENTS; THE COMPANY'S FINANCIAL STATEMENTS. The Company is a
reporting company under the Securities Exchange Act of 1934 (the "Exchange
Act"), and files annual and periodic reports (the "SEC Documents") with the
Securities and Exchange Commission (the "SEC"). As of their respective filing
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended, applicable to the Company
and to the knowledge of the Company none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements made therein, in light
of the circumstances in which they were made, not misleading, except to the
extent corrected by a subsequently filed document with the SEC. The SEC
Documents contain an audited consolidated balance sheet of the Company as of the
end of the last completed fiscal year (the "Balance Sheet") and the related
audited consolidated statements of income and cash flow for the year then ended
(collectively, the "Financials"). The Financials have been prepared in
accordance with GAAP applied on a basis consistent through the periods indicated
and consistent with each other. The Financials present fairly the consolidated
financial condition and operating results and cash flows of the Company and its
subsidiaries as of the dates and during the periods indicated therein. Since the
date of the Balance Sheet and until the date of this Agreement, there has not
occurred any material adverse change in the business, assets or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a whole,
which has not been reflected in the SEC Documents.
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3.7 FORM S-3. The Company has delivered to each Investor a copy of the
Form S-3. The Company represents and warrants that the Form S-3 has been
declared effective by the SEC and is not subject to any stop order. The Company
is not aware of any event, fact or circumstance, which would cause the Form S-3
to contain a material misstatement. The Company at the time of the initial
filing of the Form S-3 met the SEC's eligibility requirements for use of a Form
S-3 in connection with a primary offering.
3.8 DISCLOSURE. Neither this Agreement, nor any of the schedules,
attachments, or certificates attached to this Agreement or delivered by the
Company on the Closing Date, contains any untrue statements of material fact or
omits a material fact necessary to make the statements contained herein or
therein not misleading. There is no fact which the Company has not disclosed to
the Investors, orally or in writing, and of which any of the Company's directors
or officers are aware, which could reasonably be anticipated to have a material
adverse effect, upon the financial condition, operating results or assets, of
the Company. Notwithstanding the foregoing, certain information provided by the
Company to the Investors contained statements that are forward-looking, which
are covered by the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. Such forward-looking information involves important risks
and uncertainties that could significantly affect anticipated results in the
future, and accordingly, such results may differ materially from those expressed
in any forward-looking statements made by or on behalf of the Company.
3.9 NO CONSENTS. The execution, delivery and performance by the Company
of this Agreement and the offer, issuance and sale of the Shares and the
Additional Shares require no consent of, action by or in respect of, or filing
with, any individual or entity, governmental body, agency, or official other
than filings that have been made pursuant to applicable state securities laws
and post-sale filings pursuant to applicable state and federal securities laws
which the Company undertakes to file within the applicable time periods.
3.10 REGULATORY COMPLIANCE. The Company is not in violation of any
applicable law, regulation, judgment, order or consent decree (of any
governmental or non-governmental regulatory or self-regulatory agency or any
organized exchange, including without limitation, the SEC, any state or local
securities or insurance regulatory body, or the Internal Revenue Service), which
violation is likely to have a material adverse effect on the Company's business,
financial condition, or this transaction.
3.11 REGULATORY PROCEEDINGS, INVESTIGATIONS AND INQUIRIES. The Company
has not been the subject of any material regulatory proceeding, examination,
investigation or inquiry (known to the Company), including any pending or
threatened regulatory proceeding, investigation or inquiry (known to the
Company) (including without limitation any by governmental or non-governmental
regulatory or self-regulatory agency or any organized exchange) relating to the
Company.
3.12 CERTAIN FEES. Except for fees or commissions payable by the
Company as set forth on Schedule A, 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 transaction contemplated by this Agreement. The Investors
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.
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3.13 REGISTRATION STATEMENT. The Company's Registration Statement on
Form S-3 (the "Registration Statement") was declared effective by the SEC on
March 31, 2003. The Registration Statement is effective on the date hereof and
the Company has not received notice that the SEC has issued or intends to issue
a stop order with respect to such Registration Statement or that the SEC
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 Registration Statement (including the information or
documents incorporated by reference therein), as of the time it was declared
effective, and any amendments or supplements thereto, each as of the time of
filing, did not contain any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company hereby agrees to file with the
SEC a prospectus supplement in accordance with the required timelines as
prescribed under Rule 424(b)(2) of the Securities Act. The issuance of the
Shares and Additional Shares to the Investors is registered by the Registration
Statement and, when issued to the Investors, the Shares and the Additional
Shares shall be freely tradeable by the Investors.
3.14 COMPLIANCE WITH NASDAQ CONTINUED LISTING REQUIREMENTS. The Company
is in compliance with applicable Nasdaq SmallCap Market continued listing
requirements. There are no proceedings pending or, to the Company's knowledge,
threatened against the Company relating to the continued listing of the Common
Stock on the Nasdaq SmallCap Market and the Company has not received any
currently effective notice of, nor to the Company's knowledge is there any basis
for, the delisting of the Common Stock from the Nasdaq SmallCap Market.
4. REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR
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Each Investor hereby represents and warrants to the Company the following:
4.1 AUTHORITY. Investor has full legal right, power and capacity to
enter into, execute, deliver and perform this Agreement and all attendant
documents and instruments contemplated hereby. This Agreement has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of Investor and is enforceable with respect to Investor in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency, priority
or other laws or court decisions relating to or affecting generally the
enforcement of creditors' rights or affecting generally the availability of
equitable remedies.
4.2 NO VIOLATION OF AGREEMENTS. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereunder
by Investor will violate or conflict with any judgment, order, decree, statute,
rule or regulation applicable to Investor or its assets or properties.
4.3 DISCLOSURE OF INFORMATION. Subject in part to the truth and
accuracy of the representations and warranties of the Company, the Investor
believes that it has received all the information that it considers necessary or
appropriate for deciding whether to purchase the Shares. The Investor further
represents that it has had an opportunity to review the SEC Documents and the
Form S-3, and had sufficient opportunity to ask questions and receive answers
from the Company and its directors and officers regarding the terms and
conditions of the offering of the Shares and the business and operations of the
Company. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 3 of this Agreement or the right of the
Investor to rely thereon.
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5. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
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The obligations of the Company to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction of each of the conditions
set forth below, any or all of which may be waived by the Company in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by the Company of any other condition or of any of the
Company's rights or remedies, at law or in equity, if the Investors shall be in
default or breach of any of its representations, warranties or agreements under
this Agreement:
5.1 PURCHASE PRICE. Each Investor shall deliver on the Closing Date
that portion of the Purchase Price to be paid by such Investor as provided in
Section 1.2.
5.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Investor contained in this Agreement shall be accurate and
complete on and as of the Closing Date with the same effect as though such
representations and warranties had been made on or as of such date.
5.3 PERFORMANCE OF AGREEMENTS. Each and all of the conditions precedent
and agreements of the Investors subject to satisfaction on or before the Closing
Date pursuant to the terms of this Agreement shall have been performed or
satisfied.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF INVESTOR
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The obligations of each Investor to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction of each of the conditions
set forth below, any or all of which may be waived by each Investor in whole or
in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by such Investor of any other condition or
of any of such Investor's rights or remedies, at law or in equity, if the
Company shall be in default or breach of any of its representations, warranties
or agreements under this Agreement:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Agreement shall be accurate and
complete on and as of the Closing Date with the same effect as though such
representations and warranties had been made on or as of such date and the
Company shall have delivered to Investor a certificate to that effect signed by
the Company, and dated as of the Closing Date.
6.2 PERFORMANCE OF AGREEMENTS. Each and all of the conditions precedent
and agreements of the Company subject to satisfaction on or before the Closing
Date pursuant to the terms of this Agreement shall have been performed or
satisfied and the Company shall have delivered to Investor a certificate to that
effect signed by the Company, and dated as of the Closing Date.
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6.3 NO ADVERSE EVENTS. Between the date hereof and the Closing Date,
neither the business, assets or condition, financial or otherwise, of the
Company taken as a whole shall have been materially adversely affected in any
manner.
6.4 DELIVERY OF DOCUMENTS. The Company shall have effected the
transfers and deliveries set forth in Section 1.1.
7. MISCELLANEOUS
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7.1 EXPENSES, COMMISSIONS AND TAXES. Each party shall bear and pay its
own expenses, including legal, accounting and other professional fees, and taxes
incurred in connection with the transactions referred to in this Agreement. The
party responsible under applicable law shall bear and pay in their entirety all
other taxes and registration and transfer fees, if any, payable by reason of the
sale and conveyance of the Shares.
7.2 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement, together
with the related agreements or certificates referenced herein, constitutes the
final, exclusive and complete understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior understandings and
discussions with respect thereto. No variation or modification of this Agreement
and no waiver of any provision or condition hereof, or granting of any consent
contemplated hereby, shall be valid unless in writing and signed by the party
against whom enforcement of any such variation, modification, waiver or consent
is sought.
7.3 FURTHER ASSURANCES. The parties hereto shall use their best
efforts, and shall cooperate with one another, to secure all necessary consents,
approvals, authorizations, exemptions and waivers from third parties as shall be
required in order to consummate the transactions contemplated hereby, and shall
otherwise use their best efforts to cause such transactions to be consummated in
accordance with the terms and conditions hereof. At any time or from time to
time after the Closing Date, each party hereto, shall execute and deliver any
further instruments or documents and take all such further action as such
requesting party may reasonably request in order to consummate and document the
transactions contemplated hereby.
7.4 CAPTIONS. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the constructing or
interpretation of any provision of this Agreement.
7.5 SECTION REFERENCES. Unless otherwise noted, all section references
herein are to sections of this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including electronically transmitted counterparts, each of which
when so executed shall constitute an original copy hereof, but all of which
together shall constitute one agreement.
7.7 SUCCESSORS AND ASSIGNS. Neither party shall have the right to
assign this Agreement.
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7.8 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
7.9 NOTICES. All notices, requests, demands and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been duly
given if delivered by hand or by registered or certified mail, postage prepaid,
return receipt requested, but only upon receipt of such return receipt, as
follows:
If to Investors: As noted in Exhibit I
If to the Company: Peregrine Pharmaceutical, Inc.
14272 Franklin Avenue, Suite 100
Tustin, California 92780
Attn.: President
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All Notices shall be deemed received on the date
of delivery or, if mailed, on the date appearing on the return receipt therefor.
7.10 LAW GOVERNING. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of California, without
regard to its choice-of-laws or conflicts-of-law rules.
7.11 SURVIVAL. The representations and warranties contained in this
Agreement shall survive the Closing Date indefinitely.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of date first above written.
"The Company"
Peregrine Pharmaceuticals, Inc.,
a Delaware corporation
BY: /S/ PAUL LYTLE
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Name: Paul Lytle
Title: CFO
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SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) ALPHA CAPITAL AG
Tax ID No.: ____________________________
Address (for delivery
of documents): ____________________________
____________________________
____________________________
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Konrad Ackerman
----------------------------
Name of Individual representing
Purchaser: KONRAD ACKERMAN
NUMBER OF SHARES TO BE PURCHASED: 78,387
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $90,145.05
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 ____________________________
11
SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) VERTICAL VENTURES, LLC
Tax ID No.: ____________________________________
Address (for delivery
of documents): 641 LEXINGTON AVE., 26TH FLOOR
NEW YORK, NY 10022
____________________________________
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Joshua Silverman
----------------------------
Name of Individual representing
Purchaser: VERTICAL VENTURES, LLC
NUMBER OF SHARES TO BE PURCHASED: 190,179
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $218,705.85
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 ____________________________
12
SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) CRANSHIRE CAPITAL, L.P.
Tax ID No.: ____________________________________
Address (for delivery
of documents): 666 DUNDEE RD., SUITE 1901
NORTHBROOK, IL 60062
____________________________________
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Mitchell Kopin
----------------------------
Name of Individual representing
Purchaser: MITCHELL KOPIN
NUMBER OF SHARES TO BE PURCHASED: 301,567
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $346,802.05
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 301,567
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SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) OTATO LIMITED PARTNERSHIP
Tax ID No.: ____________________________________
Address (for delivery
of documents): OTATO LIMITED PARTNERSHIP
C/O OTA
ONE MANHATTANVILLE RD.,
PURCHASE, NY 10577
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Richard M. Cayne
----------------------------
Name of Individual representing
Purchaser: RICHARD M. CAYNE
NUMBER OF SHARES TO BE PURCHASED: 89,585
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $103,022.75
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 89,585
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SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) SDS MERCHANT FUND, L.P.
Tax ID No.: ____________________________________
Address (for delivery
of documents): 53 FOREST AVE., 2ND FLOOR
OLD GREENWICH, CT 06870
____________________________________
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Scott Derby
----------------------------
Name of Individual representing
Purchaser: SCOTT DERBY
NUMBER OF SHARES TO BE PURCHASED: 167,973
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $193,168.95
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 167,973
15
SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) CLEVELAND OVERSEAS LTD.
Tax ID No.: ____________________________________
Address (for delivery
of documents): C/O GTF GLOBAL TRADE & FINANCE SA
ST. MARKUSGASSE 19
FL-9490 VADUZ / LIECHTENSTEIN
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Ewald Vogt
----------------------------
Name of Individual representing Ewald Vogt / Director
Purchaser: GTF GLOBAL TRADE & FINANCE SA
NUMBER OF SHARES TO BE PURCHASED: -22,396-
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $-25,755.50-
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 _____________________________
16
SCHEDULE I
"The Investors"
Print or Type:
Name of Purchaser (Institution) XMARK FUND, L.P. & XMARK FUND, LTD.
Tax ID No.: ____________________________________
Address (for delivery
of documents): XMARK FUNDS
152 WEST 57TH ST., 21ST FLOOR
NEW YORK, NY 10019
DWAC
Instructions: DTC# _________________________________________
BROKER _______________________________________
ADDRESS ______________________________________
CONTACT ______________________________________
PHONE # ______________________________________
ACCT NAME ____________________________________
ACCT NUMBER __________________________________
IF NO DWAC INSTRUCTIONS ARE PROVIDED, COMPANY WILL ISSUE PHYSICAL CERTIFICATE
FOR THE NUMBER OF SHARES LISTED BELOW. CERTIFICATE WILL BE MAILED TO ADDRESS
ABOVE UNLESS OTHERWISE STATED HEREIN.
Signature by: /s/ Mitchell D. Kaye
----------------------------
Name of Individual representing
Purchaser: MITCHELL D. KAYE
NUMBER OF SHARES TO BE PURCHASED: 749,910
PER SHARE PURCHASE PRICE: $1.15
AGGREGATE PURCHASE PRICE: $862,396.50
NUMBER OF SHARES WHICH MAY
BE ACQUIRED PURSUANT TO SECTION 1.3 749,910
17
SCHEDULE 3.5
LITIGATION
None
18
Schedule A
Fees and Commissions
1.Olympus Securities - 5% of the gross proceeds received by the Company from the
following nine (9) investors as more fully described in the Finders Agreement
dated August 8, 2002:
1. Vertical Ventures, LLC and affiliates
2. Cleveland Overseas Ltd. and affiliates
3. Xmark and affiliates
4. SDS Capital and affiliates
5. Alpha Capital and affiliates
6. Cranshire Capital and affiliates
7. West End Capital and affiliates
8. OTA and affiliates
9. Zimmer Lucas and affiliates
19