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PALATIN TECHNOLOGIES, INC.
PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. PURCHASE AND SALE OF SECURITIES.......................................1
1.1 Issue of Securities..........................................1
2. CLOSING DATE; DELIVERY................................................2
2.1 Closing......................................................2
2.2 Delivery.....................................................2
3. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PURCHASER....3
3.1 Legal Power..................................................3
3.2 Due Execution................................................3
3.3 Investment Representations...................................3
3.4 Remedies.....................................................5
3.5 Indemnification..............................................5
4. COVENANTS OF THE COMPANY..............................................6
4.1 Information..................................................6
5. UNDERSTANDINGS........................................................6
6. DEFAULTING PROSPECTIVE PURCHASERS.....................................8
7. MISCELLANEOUS.........................................................9
7.1 Governing Law................................................9
7.2 Survival.....................................................9
7.3 Successors and Assigns.......................................9
7.4 Entire Agreement.............................................9
7.5 Severability.................................................9
7.6 Amendment and Waiver.........................................9
7.7 Notices......................................................9
7.8 Fees and Expenses...........................................10
7.9 Titles and Subtitles........................................10
7.10 Counterparts................................................10
7.11 No Waiver...................................................10
8. ESCROW AGENT.........................................................10
9. EXECUTION OF AGREEMENT...............................................12
PALATIN TECHNOLOGIES, INC.
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement" or "Purchase Agreement") is made
as of ____________, 2002 by and between Palatin Technologies, Inc., a Delaware
corporation (the "Company"), with its principal office at 103 Carnegie Center,
Suite 200, Princeton, New Jersey 08540, and each of the purchasers who are
signatories hereto and any other purchasers who are made a party to this
Agreement pursuant to Section 1 (individually, a "Purchaser" and collectively,
the "Purchasers").
RECITALS
The Company is hereby offering (the "Offering") a minimum of $4,000,000 and
a maximum of $7,500,000 (a) shares (the "Shares") of the Company's Common Stock,
$.01 par value per share (the "Common Stock"), and (b) warrants (the "Warrants")
entitling the Purchaser to purchase one (1) share of Common Stock for every five
(5) shares of Common Stock purchased under this Agreement. The Shares and the
Warrants offered in the Offering shall sometimes collectively be referred to
herein as the "Securities." The Securities will be sold by the Company to
Purchasers pursuant to Regulation D ("Regulation D") and/or Regulation S
("Regulation S") promulgated under the Securities Act of 1933, as amended (the
"Act").
The purchase price of the Shares to be offered in the Offering (the
"Offering Price") will be the sum of (i) the amount equal to the average
reported closing sales prices for the Common Stock on the American Stock
Exchange (symbol "PTN") for the five (5) business days immediately prior to the
Initial Closing Date (as defined below) and any subsequent Closing Dates (as
defined below), as the case may be, and (ii) $0.025, which reflects the value
assigned to the warrants. Every five (5) shares of Common Stock purchased in the
Offering will entitle the Purchaser to a Warrant to purchase one (1) share of
Common Stock at an exercise price per share equal to 125% of the Offering Price,
subject to certain adjustments.
AGREEMENT
In consideration of the Company's agreement to sell the Securities to the
undersigned upon the terms and conditions contained herein, each Purchaser
(severally and not jointly) agrees and represents as follows:
1. PURCHASE AND SALE OF SECURITIES.
1.1 Issue of Securities.
(a) The Company has authorized the issuance and sale of a minimum
of $4,000,000 and a maximum of $7,500,000 of Securities pursuant to
the provisions of this Agreement.
(b) Subject to the terms and conditions set forth herein, the
Company hereby agrees to issue and sell to each Purchaser the
aggregate amount of Shares and Warrants
set forth below the Purchaser's signature on the subscription page
bearing such Purchaser's name. The Shares shall be sold at the
Offering Price.
(c) Subject to the terms and conditions set forth herein, each
Purchaser hereby agrees to purchase the amount of Shares and Warrants
as determined on the subscription page bearing such Purchaser's name
(each a "Subscription"). Each Purchaser shall severally, and not
jointly, be liable only for the purchase of the amount of Shares and
Warrants that appears on the subscription page hereof that relates to
such Purchaser.
(d) The Company's agreement with each Purchaser is a separate
agreement and the sale of the Securities to each Purchaser is a
separate sale.
2. CLOSING DATE; DELIVERY.
2.1 Closing. The Company expects to hold an initial closing of the
Offering (the "Initial Closing") on any day, as determined by the Company
(the "Initial Closing Date") after (i) subscriptions for a minimum of
$4,000,000 of Securities have been accepted and (ii) the escrow agent has
received funds for such accepted subscriptions, which is expected to occur
on or about May 24, 2002. The final closing of the Offering (the "Final
Closing Date") shall occur as soon as practicable on the date on which
Subscriptions for the maximum of $7,500,000 of Securities have been
accepted by the Company but no later than July 24, 2002, unless extended by
the Company for an additional period not exceeding 60 days, without notice
to the Purchaser. The Company may hold additional interim closings after
the Initial Closing. Any such interim closing together with the Initial
Closing are each hereinafter referred to as an "Interim Closing" and shall
occur on one or more dates each hereinafter referred to as an "Interim
Closing Date," and each, together with the Final Closing Date, are
hereinafter referred to as a "Closing Date."
2.2 Delivery. On each Closing Date, subject to the terms and
conditions hereof, the Company shall deliver to each Purchaser (i) stock
certificates, registered in the name of the Purchaser, representing the
Shares to be purchased by the Purchaser from the Company, and (ii) warrant
certificates, registered in the name of the Purchaser, representing the
Warrants purchased by the Purchaser, each dated as of the relevant Closing
Date, against payment of the purchase price therefor (the "Payment") by
wire transfer or previously cleared check, unless other means of payment
shall have been agreed upon by the Purchaser and the Company. The
undersigned understands that payments by check as provided in this
Paragraph 2.2 shall be delivered to Mintz Levin Cohn Ferris Glovsky and
Popeo, P.C., as the escrow agent and, thereafter, such payment will be
deposited as soon as practicable in an escrow account for the undersigned's
benefit. The wire transfer shall be made to Mintz Levin Cohn Ferris Glovsky
and Popeo, P.C., as escrow agent in accordance with the wire transfer
instructions attached as Exhibit A hereto. The Payment will be made on or
prior to the relevant Closing Date. The Payment (or, in the case of the
rejection of a portion of the undersigned's subscription, the part of the
Payment relating to such rejected portion) will be returned promptly,
without interest or deduction, if the undersigned's subscription is
rejected in whole or in part. Any Payment made by the Purchaser prior to
the Initial Closing and/or any subsequent Closing is based on an estimated
price per share of Common Stock of $3.00. The Purchaser agrees to remit to
the Company on the Initial Closing and/or any Interim Closing the balance
of the Payment if the Offering Price is greater than $3.00 per share. The
Company agrees to promptly remit to the Purchaser any excess
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Payment made by such Purchaser if the Offering Price is less than $3.00 per
share. Each party hereto shall deliver or cause to be delivered at or prior
to the Closing Date an executed copy of the Registration Rights Agreement
between the Company and the Purchaser and the Company shall deliver to each
Purchaser a fully-executed copy of the Agreement.
3. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PURCHASER.
Each Purchaser hereby represents and warrants to, and agrees with, the
Company as follows:
3.1 Legal Power. If this Agreement is executed and delivered on behalf
of a partnership, corporation, limited liability company, trust or estate:
(i) such partnership, corporation, limited liability company, trust or
estate has the full legal right and power and all authority and approval
required (a) to execute and delivery, or authorize execution and deliver
of, this Agreement and all other instruments (including, without
limitation, the Registration Rights Agreement among the Purchasers and the
Company (the "Registration Rights Agreement") executed and delivered by or
on behalf of such partnership, corporation, limited liability company,
trust or estate in connection with the purchase of its Securities, (b) to
delegate authority pursuant to a power of attorney and (c) to purchase and
hold such Securities; (ii) the signature of the party signing on behalf of
such partnership, corporation, limited liability company, trust or estate
is binding upon such partnership, corporation, trust or estate; and (iii)
such partnership, corporation, limited liability company or trust has not
been formed for the specific purpose of acquiring such Securities, unless
each beneficial owner of such entity is qualified as an accredited investor
within the meaning of Rule 501(a) of Regulation D and has submitted
information substantiating such individual qualification.
3.2 Due Execution. Each of this Agreement and the Registration Rights
Agreement (collectively, the "Operative Documents") has been duly
authorized, if Purchaser is a corporation, partnership, limited liability
company, trust or fiduciary, executed and delivered by Purchaser and, upon
due execution and delivery by the Company, the Operative Documents will be
valid and binding agreements of Purchaser, enforceable against Purchaser in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting
creditors' rights and subject to general equity principles.
3.3 Investment Representations.
3.3.1 Purchaser is acquiring the Securities for its own account,
not as nominee or agent, for investment and not with a view to or for
resale in connection with any distribution or public offering thereof
within the meaning of the Act, except pursuant to an effective
registration statement under the Act. Alternatively, if Purchaser is a
non-United States resident, such purchaser represents that it (a) is
acquiring the Securities solely for its own account, and not on behalf
of a U.S. resident, for investment purposes and not with a view to
distribution or resale, and (b) will not sell, hypothecate, pledge or
otherwise dispose of any interest in the Securities, in the United
States, its territories and possessions or any area subject to its
jurisdiction, or to any partnership or other entity created or
organized therein, unless such Securities have been either registered
under the Act or are exempt from the registration
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requirements of the Act; in the opinion of the Company's counsel, and
unless such Purchaser has complied with any applicable restrictions on
transfer in this Agreement.
3.3.2 Purchaser understands that (i) the Securities have not been
registered under the Act by reason of a specific exemption therefrom,
and may not be transferred or resold except pursuant to an effective
registration statement or exemption from registration and (ii) each
certificate or other document representing the Securities will be
endorsed with legends in substantially the following form:
A) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED
UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
B) Any legend required to be placed thereon by applicable
federal or state securities laws;
and (iii) the Company will instruct any transfer agent not to register
the transfer of any of the Securities unless the conditions specified
in the foregoing legend are satisfied.
3.3.3 The Purchaser is familiar with and understands the terms of
the Offering, including the rights to which the Purchaser is entitled
under the Registration Rights Agreement and Form of Warrant
Certificate attached hereto. The Purchaser has been furnished with and
has carefully read the Company's Current Reports on Form 8-K dated
June 5, 2001, June 1, 2001 and May 2, 2001 (the "8-Ks"), the Company's
Quarterly Reports on Form 10-Q for the Quarters ended March 31, 2002,
December 31, 2001 and September 30, 2001 (the "10-Qs"), and the
Company's Annual Report on Form 10-K for the year ended June 30, 2001
(the "10-K"). In evaluating the suitability of an investment in the
Company, the Purchaser has not relied upon any representation or other
information (whether oral or written) from the Company, or any agent,
employee or affiliate of the Company other than as set forth in the
10-K, 10-Qs and 8-Ks and the results of Purchaser's own independent
investigation. With respect to individual or partnership tax and other
economic considerations involved in this investment, the Purchaser has
carefully considered and has, to the extent the Purchaser believes
such discussion necessary, discussed with the Purchaser's professional
legal, tax, accounting and financial advisers the suitability of an
investment in the Securities for the Purchaser's particular tax and
financial situation and has determined that the Securities being
subscribed for by the Purchaser are a suitable investment for the
Purchaser.
3.3.4 The Purchaser acknowledges that (i) the Purchaser has had
the right to request copies of any documents, records and books
pertaining to this investment and (ii)
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such documents, records, and books pertaining to this investment which
the Purchaser requested have been made available for inspection by the
Purchaser, the Purchaser's representative, attorney, accountant or
adviser(s) (the "Purchaser's advisers").
3.3.5 The Purchaser and/or the Purchaser's adviser(s) has/have
had a reasonable opportunity to ask questions of and receive answers
from a person or persons acting on behalf of the Company concerning
the Offering and all such questions have been answered to the full
satisfaction of the Purchaser.
3.3.6 The Purchaser is not subscribing for Securities as a result
of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or
meeting.
3.3.7 Purchaser is an "accredited investor" as such term is
defined in Rule 501 under the Act and as indicated by the Purchaser's
responses to the Confidential Purchaser Questionnaire.
3.3.8 Purchaser is a resident of, and all communications
regarding Purchaser's purchase of the Securities were sent to
Purchaser, in the state and country of Purchaser's residence shown on
the subscription page attached hereto.
3.3.9 If the Purchaser is a natural person, the Purchaser has
reached the age of majority in the state or other jurisdiction in
which the Purchaser resides, has adequate means of providing for the
Purchaser's current financial needs and contingencies, is able to bear
the substantial economic risks of an investment in the Securities for
an indefinite period of time, has no need for liquidity in such
investment and, at the present time, could afford a complete loss of
such investment.
3.3.10 The Purchaser or the Purchaser's representative, as the
case may be, has such knowledge and experience in financial, tax and
business matters so as to enable the Purchaser to utilize the
information made available to the Purchaser in connection with the
Offering to evaluate the merits and risks of an investment in the
Securities and to make an informed investment decision with respect
thereto.
3.3.11 The Purchaser recognizes that an investment in the
Securities involves substantial risks, including loss of the entire
amount of such investment. Further, the Purchaser has carefully read
and considered the matters set forth under the caption "Important
Factors Affecting Our Business" in the 10-K, and has taken full
cognizance of and understands all of the risks related to the purchase
of the Securities.
3.4 Remedies. The Purchaser acknowledges and agrees that it shall not
be entitled to seek any remedies with respect to the Offering from any
party other than the Company.
3.5 Indemnification. The Purchaser shall indemnify and hold harmless
the Company and each officer, director or control person of the Company,
who is or may be a party or is or may be threatened to be made a party to
any threatened, pending or completed action,
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suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of or arising from any actual or alleged
misrepresentation or misstatement of facts or omission to represent or
state facts made or alleged to have been made by the Purchaser to the
Company, or omitted or alleged to have been omitted by the Purchaser,
concerning the Purchaser or the Purchaser's authority to invest or
financial position in connection with the Offering, including, without
limitation, any such misrepresentation, misstatement or omission contained
in any investor qualification questionnaire or any other document submitted
by the Purchaser, against losses, liabilities and expenses for which the
Company, or any officer, director or control person of the Company has not
otherwise been reimbursed (including attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred by the
Company, or such officer, director or control person in connection with
such action, suit or proceeding.
4. COVENANTS OF THE COMPANY.
4.1 Information.
So long as the Company is subject to the periodic reporting
requirements of the Exchange Act, the Company shall deliver to each holder
of Securities all annual, quarterly or other reports to the extent such
reports are furnished to the Company's public security holders. In the
event that the Company is not so subject, until the fifth anniversary of
the relevant Closing Date the Company shall promptly furnish to each holder
of Securities (i) as soon as available, and in any event within 90 days
after the end of each fiscal year of the Company, a consolidated balance
sheet of the Company and its consolidated subsidiaries, if any, as of the
end of such fiscal year and the related consolidated statements of income,
stockholders' equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
prepared in accordance with generally accepted accounting principles and
reported on by independent certified public accountants of recognized
national standing; and (ii) as soon as available, and in any event within
45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, a consolidated balance sheet of the Company and
its consolidated subsidiaries, if any, as of the end of such quarter and
the related consolidated statements of income and stockholder's equity
(together with any other quarterly financial statements being prepared by
the Company at such time), setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation and consistency by the
chief financial or accounting officer of the Company.
5. UNDERSTANDINGS.
The Purchaser understands, acknowledges and agrees with the Company as
follows:
5.1 This Subscription may be rejected, in whole or in part, by the
Company, in the sole and absolute discretion of the Company, at any time
before any Closing Date notwithstanding prior receipt by the Purchaser of
notice of acceptance of the Purchaser's Subscription.
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5.2 Except as otherwise set forth herein, the Purchaser hereby
acknowledges and agrees that the Subscription hereunder is irrevocable by
the Purchaser, that, except as required by law, the Purchaser is not
entitled to cancel, terminate or revoke this Agreement or any agreements of
the Purchaser hereunder and that this Agreement and such other agreements
shall survive the death or disability of the Purchaser and shall be binding
upon and inure to the benefit of the parties and their heirs, executors,
administrators, successors, legal representatives and permitted assigns. If
the Purchaser is more than one person, the obligations of the Purchaser
hereunder shall be joint and several and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to be made
by and be binding upon each such person and his/her heirs, executors,
administrators, successors, legal representatives and permitted assigns.
5.3 No federal or state agency has made any finding or determination
as to the accuracy or adequacy of this Agreement or the Registration Rights
Agreement or as to the fairness of the terms of this Offering for
investment nor any recommendation or endorsement of the Securities.
5.4 The Offering is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Regulation D thereunder, and/or the provisions of Regulation
S which is in part dependent upon the truth, completeness and accuracy of
the statements made by the Purchaser.
5.5 There can be no assurance that the Purchaser will be able to sell
or dispose of the Securities. It is understood that in order not to
jeopardize the Offering's exempt status under Section 4(2) of the
Securities Act and Regulation D, as well as Regulation S, any transferee
may, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
5.6 Privateq Advisors AG (the "Placement Agent") is acting as a finder
in connection with this Offering solely in Europe and will receive a fee
equal to 7% of the aggregate cash value of the amount of equity investment
raised by the Company through the introduction by the Placement Agent to
qualified individuals or institutions and (ii) warrants to purchase shares
of Common Stock equal to 10% of the shares of Common Stock sold as part of
such equity investment, with such warrants having an exercise price equal
to 125% of the Offering price per common share. The Company does not
currently anticipate employing the services of a finder in the United
States.
5.7 The Purchaser acknowledges that the information contained in this
Agreement and the Registration Rights Agreement or otherwise made available
to the Purchaser is confidential and non-public and agrees that all such
information shall be kept in confidence by the Purchaser and neither used
by the Purchaser for the Purchaser's personal benefit (other than in
connection with this Subscription) nor disclosed to any third party for any
reason, notwithstanding that a Purchaser's Subscription may not be accepted
by the Company; provided, however, that this obligation shall not apply to
any such information that (i) is part of the public knowledge or literature
and readily accessible at the date hereof, (ii) becomes part of the public
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knowledge or literature and readily accessible by publication (except as a
result of a breach of this provision) or (iii) is received from third
parties (except third parties who disclose such information in violation of
any confidentiality agreements or obligations, including, without
limitation, any subscription or other similar agreement entered into with
the Company).
5.8 The representations, warranties and agreements of the Purchaser
contained herein and in any other writing delivered in connection with the
transactions contemplated hereby shall be true and correct in all respects
on and as of the relevant Closing Date of the sale of the Securities as if
made on and as of such date and shall survive the execution and delivery of
this Agreement and the purchase of the Securities.
5.9 IN MAKING AN INVESTMENT DECISION, PURCHASERS MUST RELY ON THEIR
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY
FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR
DETERMINED THE ADEQUACY OF THIS PURCHASE AGREEMENT OR OTHER WRITINGS
DELIVERED IN CONNECTION WITH THE SALE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
5.10 THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE DISPOSED OF EXCEPT
AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. PURCHASERS SHOULD BE
AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS
INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
5.11 If the Purchaser is a Registered Representative of an NASD member
firm, the Purchaser must give such firm the notice required by the NASD's
Rules of Fair Practice, receipt of which must be acknowledged by such firm
on the signature page hereof.
6. DEFAULTING PROSPECTIVE PURCHASERS.
(a) If, on the relevant Closing Date, a prospective Purchaser defaults
in the performance of its obligations under this Agreement, a
non-defaulting prospective Purchaser may make arrangements for the purchase
of the Securities that would have been purchased by such defaulting
prospective Purchaser by other persons satisfactory to the Company and the
non-defaulting prospective Purchasers, but if no such arrangements are made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting prospective Purchasers or the
Company except that prospective Purchasers will continue to be liable for
the payment of expenses to the extent set forth in Section 7.8 and except
that the provisions of Section 3.5 shall not terminate and shall remain in
effect.
(b) Nothing contained herein shall relieve a defaulting prospective
Purchaser of any liability it may have for damages caused by its default.
If other Purchasers
8
agree to purchase the Securities of a defaulting prospective Purchaser,
either the non-defaulting prospective Purchaser or the Company may postpone
a Closing Date for up to seven (7) full business days in order to effect
any changes that in the reasonable opinion of counsel for the Company or
counsel for the Placement Agent may be necessary in any document or
arrangement, and the Company agrees to prepare and distribute promptly any
amendment that effects any such changes.
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to any otherwise
applicable principles of conflicts of laws.
7.2 Survival. The representations and warranties made by the parties
in this Agreement shall survive the consummation of the transactions herein
contemplated until the expiration of the statute of limitations with
respect to claims arising under Section 10(b) of the Securities Exchange
Act of 1934, as amended, with respect to the purchase of Securities
hereunder.
7.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.4 Entire Agreement. This Agreement and the Exhibits hereto,
constitute the full and entire understanding and agreement among the
parties with regard to the subjects hereof and no party shall be liable or
bound to any other party in any manner by any representations, warranties,
covenants or agreements except as specifically set forth herein or therein.
Nothing in this Agreement, express or implied, is intended to confer upon
any party, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
7.5 Severability. In the event that any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable and
to retain as nearly as practicable the intent of the parties, and the
validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby. To the extent permitted by
law, the parties hereto waive the benefit of any provision of law that
renders any provision of this Agreement invalid or unenforceable in any
respect.
7.6 Amendment and Waiver. Except as otherwise provided herein, any
term of this Agreement may be amended, and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of
time or indefinitely), with the written consent of the Company and the
Purchaser.
7.7 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively
given upon personal delivery, on the first business day following
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mailing by overnight courier, or on the fifth day following mailing by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company and the Purchaser at the respective addresses
included herein.
7.8 Fees and Expenses. Except as otherwise provided herein, the
Company and the Purchasers shall bear their own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
7.9 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and
are not to be considered in construing this Agreement.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
7.11 No Waiver. No waiver by any party to this Agreement of any one or
more defaults by any other party or parties in the performance of any of
the provisions hereof shall operate or be construed as a waiver of any
future default or defaults, whether of a like or different nature. Except
as expressly provided herein, no failure or delay on the part of any party
in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
8. ESCROW AGENT. To induce Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
to serve as the escrow agent and to act in such capacity hereunder, it is agreed
by the parties hereto that:
(a) The escrow agent shall not be under any duty to give the property
held by it hereunder (the "Escrowed Property") any greater degree of care
than it gives its own similar property.
(b) This Section 8 of this Agreement expressly sets forth all the
duties of the escrow agent with respect to any and all matters pertinent
hereto. No implied duties or obligations shall be read into this Agreement
against the escrow agent. The escrow agent shall not be bound by the
provisions of any agreement among the other parties hereto except this
Section 8 of this Agreement.
(c) The escrow agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to claims based
upon such gross negligence or willful misconduct that are successfully
asserted against the escrow agent, the other parties hereto shall jointly
and severally indemnify and hold harmless the escrow agent from and against
any and all losses, liabilities, claims, actions, damages and expenses,
including, without limitation, reasonable attorneys' fees and
disbursements, arising out of or in connection with this Agreement.
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(d) The escrow agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing
delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety
or validity of the service thereof. The escrow agent may act in reliance
upon any instrument or signature believed by it to be genuine and may
assume that any person purporting to give receipt or advice or make any
statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
(e) The escrow agent may act pursuant to the advice of counsel with
respect to any matter relating to this Agreement and shall not be liable
for any action taken or omitted in accordance with such advice.
(f) The escrow agent does not have any interest in the Escrowed
Property deposited hereunder but is serving as escrow holder only and
having only possession thereof. The other parties shall, on a joint and
several basis, pay or reimburse the escrow agent upon request for any and
all expenses, if any, incurred by the escrow agent in connection with this
Agreement and transfer taxes or other taxes relating to the Escrowed
Property incurred in connection herewith and shall indemnify and hold
harmless the escrow agent from any amounts that it is obligated to pay in
the way of such expenses and taxes. This subparagraph and subparagraph (c)
shall survive notwithstanding any termination of this Agreement or the
resignation of the escrow agent.
(g) The escrow agent makes no representation as to the validity,
value, genuineness or the collectability of any security or other document
or instrument held by or delivered to it.
(h) The escrow agent may at any time resign as such by delivering the
Escrowed Property to any successor escrow agent jointly designated by the
other parties hereto in writing, or to any court of competent jurisdiction,
whereupon the escrow agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement. The
resignation of the escrow agent will take effect on the earlier of (a) the
appointment of a successor (including a court of competent jurisdiction) or
(b) the day which is 30 days after the date of delivery of its written
notice of resignation to the other parties hereto. If at that time the
escrow agent has not received a designation of a successor escrow agent,
the escrow agent's sole responsibility after that time shall be to safekeep
the Escrowed Property until receipt of a designation of successor escrow
agent or a joint written disposition instruction by the other parties
hereto or a final order of a court of competent jurisdiction.
(i) In the event of any disagreement between the other parties hereto
resulting in adverse claims or demands being made in connection with the
Escrowed Property, or in the event that the escrow agent in good faith is
in doubt as to what action it should take hereunder, the escrow agent shall
be entitled to retain the Escrowed Property until the escrow agent shall
have received (i) a final non-appealable order of a court of competent
jurisdiction directing delivery of the Escrowed Property or (ii) a written
agreement executed by the other parties hereto directing delivery of the
Escrowed Property, in which event the escrow agent shall disburse the
Escrowed Property in accordance with such order or agreement. Any court
order
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shall be accompanied by a legal opinion by counsel for the presenting party
satisfactory to the escrow agent to the effect that said opinion is final
and non-appealable.
(j) Notwithstanding anything to the contrary contained herein, the
escrow agent's duties and obligations hereunder shall terminate upon the
release and distribution of the Escrowed Property in accordance with the
terms of this Agreement.
(k) Each of the Company and the Purchaser understands and agrees that,
notwithstanding its duties as escrow agent hereunder, the escrow agent is
the attorney for the Company, and, accordingly, neither any services as
escrow agent hereunder nor any provisions hereof, either express or
implied, shall restrict or inhibit the escrow agent in any way from
representing the Company or its affiliates in any action, dispute,
controversy, arbitration, suit or negotiation arising under this Agreement
or under any other agreement or in any manner or context whatsoever,
whether or not directly or indirectly involving the Company or its
affiliates. Notwithstanding anything to the contrary contained herein, if
at any time a law firm representing either Company or Purchasers serves or
is serving as escrow agent, then with respect to such law firm's capacity
as escrow agent, such counsel shall not for these purposes serve as the
agent for either of the parties, but shall be a fiduciary of both parties.
9. EXECUTION OF AGREEMENT.
THE PURCHASER ACKNOWLEDGES THAT THE PURCHASER HAS SIGNED THIS AGREEMENT ON
THE PURCHASER'S OWN BEHALF, AND NOT BY POWER OF ATTORNEY.
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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement
as of the day and year first written above.
By:
------------------------------------------------
Name of Purchaser(s):
Address:
------------------------------------------------
Social Security or Taxpayer
Identification Number of Purchaser(s)
------------------------------------------------
------------------------------------------------
Number of Shares Purchased
------------------------------------------------
------------------------------------------------
Number of Warrants Purchased
*$________________________________
U.S. Dollar Amount Invested
Date: ____________, 2002
* If Purchaser is a Registered Representative with a NASD member firm,
have the following acknowledgment signed by the appropriate party:
The undersigned NASD member firm acknowledges receipt of the notice required by
Article 3, Sections 28(a) and (b) of the Rules of Fair Practice.
By:
----------------------------------------------
Name of NASD Member Firm:
By:
----------------------------------------------
Authorized Officer:
* Estimated based on $___ per share of Common Stock. Adjustments will be
made in the Payment if the Offering Price, as defined in the Purchase
Agreement, is different than the estimated $___ price per share. The
Purchaser agrees to remit to the Company on the applicable Closing the
balance of the Payment if the Offering Price is greater than $___ per
share. The Company agrees to promptly remit to the Purchaser any excess
Payment made by the Purchaser if the Offering Price is less than $___
per share.
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Subscription Accepted:
PALATIN TECHNOLOGIES, INC.
By:
--------------------------------------------------------
Carl Spana, Ph.D.
Chief Executive Officer
Date: __________, 2002
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EXHIBIT A
WIRE TRANSFER INSTRUCTIONS
Wire transfers should be made to Mintz Levin Cohn Ferris Glovsky and Popeo
PC, as Escrow Agent, Fleet Bank of Massachusetts, N.A., Malden MA 02148,
ABA#[_____________], Account Name: Mintz Levin Cohn Ferris Glovsky and Popeo PC
Firm Account, Account Number [____-____], Reference: Palatin Technologies
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