EXHIBIT 10.1
FORM OF PURCHASE AGREEMENT
Biopure Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Ladies and Gentlemen:
The undersigned (the "Investor"), hereby confirms its agreement with you
as follows:
1. This Purchase Agreement (the "Agreement") is made as of January 4, 2005
between Biopure Corporation, a Delaware corporation (the "Company"), and the
Investor.
2. The Company has authorized the sale and issuance of up to 22,200,000
shares of Class A common stock of the Company (together with associated
preferred stock purchase rights, the "Shares") in an offering (the "Offering")
that has been registered under the Securities Act of 1933, as amended, pursuant
to the Company's Registration Statement on Form S-3 (No. 333-114559), as amended
(the "Registration Statement").
3. On and subject to the terms and conditions hereof, the Investor agrees
to purchase from the Company, and the Company agrees to issue and sell to the
Investor, the number of Shares (the "Purchased Shares") for the purchase price
set forth on the signature page hereto (the "Purchase Price"). The Investor
acknowledges that the Offering of the Shares is not a firm commitment
underwriting and that there is no minimum offering amount. The Company shall
have the sole right to accept offers to purchase Shares and may reject any offer
in whole or in part. The Investor's obligation to purchase the Purchased Shares,
and the Company's obligation to issue and sell the Purchased Shares, shall be
subject to the condition that X. X. Xxxxxxxxx, Towbin, LLC (the "Agent") shall
not have (a) terminated the Agency Agreement dated January 4, 2005 between the
Company and the Agent (the "Agency Agreement") pursuant to the terms thereof, or
(b) determined that the conditions to closing set forth in the Agency Agreement
have not been satisfied as required by the Agent in its discretion.
4. On the terms and subject to the conditions contained herein, the
completion of the purchase and sale of the Shares in the Offering (the
"Closing") shall occur at 10:00 a.m. EST (or as soon thereafter as practicable),
on or about January 10, 2005 (unless another time shall be agreed to by the
Agent and the Company). Upon the terms and subject to the conditions set forth
herein:
(a) The Investor shall deliver, or cause to be delivered, (unless
otherwise agreed by the Agent and the Company) no later than 5:00 p.m. on the
date that is at least one business day prior to the Closing, the full amount of
the Purchase Price by federal wire transfer of same day funds to the following
account of the Agent.
Chase Manhattan Bank
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
ABA No. 021 000 021
FAO NFS (National Financial Services)
Account No. 000-000-000
FC: C.E.U.T. Private Banking Escrow Account #1
Account No. KRT-980102
The Purchase Price so delivered to the Agent will be held in escrow by the
Agent until the closing under the Agency Agreement at which time, upon the terms
and subject to the conditions set forth herein, the Agent is authorized and
instructed by the Investor to, and the Investor shall cause the Agent to,
transmit the Purchase Price to the Company by federal wire transfer of same day
funds to any account specified by the Company (subject to alternative written
instruction from the Company as described below) in exchange for the Purchased
Shares.
The Agent shall have no rights in the escrowed funds, except to the extent
that the Company instructs the Agent in writing to apply to any such funds to
fees and expenses owed by the Company to the Agent, and in such case, only after
the Closing has occurred. The Company and the Investor, severally and not
jointly, agree to indemnify and hold the Agent harmless from and against any
losses, costs, damages and claims (including, without limitation, court costs
and reasonable attorneys fees) to the extent arising in respect of its escrow of
funds hereunder, except for such losses resulting from the Agent's willful
misconduct or gross negligence. In no event will the Agent be liable for any
special, indirect or consequential losses or damage of any kind.
(b) At the Closing, against payment to it of the Purchase Price by
federal wire transfer of same day funds, upon the terms and subject to the
conditions set forth herein, the Company shall cause its transfer agent and
registrar, the American Stock Transfer & Trust Company (the "Transfer Agent")
(DTC Participant Code 2941; Attention: Xxxxxxx Xxxxx, (000) 000-0000), to issue
and deliver to the Investor, the Purchased Shares, by electronic delivery of the
Purchased Shares through the Deposit Withdrawal At Custodian ("DWAC") system of
the Depository Trust Company ("DTC") to the DTC participant's account number set
forth on the signature page hereof.
5. The Company's obligation to issue and deliver the Purchased Shares to
the Investor will be subject to the following conditions, any one or more of
which may be waived by the Company: (i) the delivery of the Purchase Price to
the Company as set forth in Section 4(a); and (ii) the accuracy of the
representations and warranties made by the Investor herein and the fulfillment
by the Investor of its undertakings herein.
6. The Investor represents that:
(a) The Investor is purchasing the Purchased Shares for its own
account.
(b) The Investor is not a director, officer, employee or consultant
of the Company or any of its affiliates, or an affiliate of any such director,
officer, employee or consultant.
(c) Except as set forth on the signature page hereto, the Investor
has had no position, office or other material relationship within the past three
years with the Company or any of its affiliates, and it has no direct or
indirect affiliation or association with the Company or any NASD member as of
the date hereof.
(d) Assuming that there are 111,001,982 shares of the Company's
Class A common stock outstanding immediately prior to the Closing, the Investor
does not and, immediately following the Closing hereunder, will not, together
with its "affiliates" and "associates" as such terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, beneficially own 20% or more of the Company's outstanding Class A
common stock.
(e) Assuming that there are 111,001,982 shares of the Company's
Class A common stock outstanding immediately prior to the Closing, the Investor
is not and, immediately following the Closing hereunder, will not be an
Acquiring Person (as defined in the Rights Agreement dated as of September 24,
1999 between the Company and American Stock Transfer & Trust Company, as rights
agent).
(f) The Investor has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. This Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms.
The representations, warranties and agreements of the Investor in this
Section shall survive the execution of this Agreement, the delivery to the
Investor of the Purchased Shares and the payment therefor.
7. The Investor hereby confirms receipt of the Prospectus Supplement dated
January 4, 2005 and the Prospectus dated November 18, 2004 (collectively, the
"Prospectus") of the Company distributed by e-mail to the Investor together with
this Agreement. The Investor confirms that it had consented to electronic
delivery of the Prospectus and this Agreement and confirms that it had full
access to the Prospectus and was fully able to read, review, download and print
the Prospectus.
8. The Investor, if outside the United States, agrees that it will comply
with all applicable laws and regulations in each foreign jurisdiction in which
it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.
9. The Investor understands that nothing in the Prospectus, this Purchase
Agreement or any other materials presented to the Investor in connection with
the purchase and sale of the Shares constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares.
10. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York, without giving effect to the
principles of conflicts of law.
11. Each of the Investor and the Company expressly agrees that the Agent
is a third-party beneficiary with respect to the Agreement and that,
notwithstanding anything to the contrary herein, the provisions of the last
paragraph of Section 4(a) hereunder may not be modified or waived without its
prior written consent.
12. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the other
parties.
13. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Investor. In case any
provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Please confirm that the foregoing correctly sets forth the agreement between us
by signing in the space provided below for that purpose.
INVESTOR
Name:________________________________
(print exact name of Investor)
By:__________________________________
(signature)
Name of Signatory:
Title of Signatory:
INVESTOR CONTACT INFORMATION:
Address:
_____________________________________
_____________________________________
_____________________________________
Tax ID No.: _________________________
Contact Name: _______________________
Contact Fax Number: _________________
Contact Email: ______________________
Contact Telephone Number: ___________
PURCHASED SHARES:____________________
PURCHASE PRICE:______________________
CONFIRMATION OF NO MATERIAL RELATIONSHIP, AFFILIATION OR ASSOCIATION:
Unless specified below, the Investor represents and warrants that it has had no
position, office or other material relationship within the past three years with
the Company or any of its affiliates, and it has no direct or indirect
affiliation or association with the Company or any NASD member as of the date
hereof.
_____________________________________
_____________________________________
_____________________________________
_____________________________________
INVESTOR INSTRUCTIONS:
PURCHASED SHARES: DTC participant's name in which book-entry should be made (if
different from Investor name):
_________________________________
Broker: _________________________
Broker Contact Name: ____________
Broker Phone Number: ____________
Broker Fax: _____________________
Broker Email: ___________________
DTC Account Number: _____________
AGREED AND ACCEPTED:
BIOPURE CORPORATION
By: ______________________________
Name:
Title:
