Exhibit 10.48
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of the 7th day
of July, 2003 by and among Antares Pharma, Inc., a Minnesota corporation (the
"Company"), and the Investors set forth on Schedule I affixed hereto, as such
Schedule may be amended from time to time in accordance with the terms of this
Agreement (each an "Investor" and collectively the "Investors").
RECITALS
A. The Company and the Investors are executing and
delivering this Agreement in reliance upon the exemption from securities
registration afforded by the provisions of Regulation D ("Regulation D"), as
promulgated by the U.S. Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended; and
B. The Investors wish to purchase from the Company, and the
Company wishes to sell and issue to the Investors, upon the terms and conditions
stated in this Agreement, such number of shares of the Company's Common Stock,
par value $0.01 per share (the "Common Stock"), as is set forth next to each
such Investor's name on Schedule I affixed hereto; and
C. The Company has agreed that, upon consummation of the
purchase of the Common Stock, the Company will issue to each Investor, or its
designee, warrants to purchase such number of shares of the Company's Common
Stock as is set forth next to each such Investor's name on Schedule I affixed
hereto, at an exercise price of $1.25 per share, in the form attached hereto as
Exhibit A (the "Warrants"); and
D. Contemporaneous with the sale of the Common Stock, the
parties hereto will execute and deliver a Registration Rights Agreement, in the
form attached hereto as Exhibit B (the "Registration Rights Agreement"),
pursuant to which, among other things, the Company will agree to provide certain
registration rights under the Securities Act of 1933, as amended (the "1933
Act"), and the rules and regulations promulgated thereunder, and applicable
state securities laws.
E. Contemporaneously with the sale of the Common Stock, the
parties hereto, Xx. Xxxxxxx Xxxxxxx, and Permatec Holding AG (Xx. Xxxxxxx and
Permatec Holding AG, collectively, the "Key Holders") will execute and deliver a
Voting Agreement, in the form attached hereto as Exhibit C (the "Voting
Agreement"), pursuant to which, among other things, if requested by Xmark, the
Company and the Key Holders will agree to take all actions within their
respective control to cause an individual selected by Xmark to be elected to the
Company's Board of Directors (the "Board").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and
elsewhere in this Agreement, for the purposes of this Agreement, the following
terms shall have the meanings here set forth:
"Affiliate" means, with respect to any Person, any other Person
which directly or indirectly Controls, is controlled by, or is under common
control with, such Person.
"Business Day" means a day, other than a Saturday or Sunday, on
which banks in New York City are open for the general transaction of business.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company, and any securities into which the Common Stock may be
reclassified.
"Company's Knowledge" means the actual knowledge of the officers
of the Company, after due inquiry.
"Confidential Information" means trade secrets, confidential
information and know-how (including but not limited to ideas, formulae,
compositions, processes, procedures and techniques, research and development
information, computer program code, performance specifications, support
documentation, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information).
"Control" means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Intellectual Property" means all of the following: (i) patents,
patent applications, patent disclosures and inventions (whether or not
patentable and whether or not reduced to practice); (ii) trademarks, service
marks, trade dress, trade names, corporate names, logos, slogans and Internet
domain names, together with all goodwill associated with each of the foregoing;
(iii) copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; (v) trade secrets, Confidential Information
and know-how (including, but not limited to, ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information); and (vi) computer
software (including, but not limited to, data, data bases and documentation).
"Material Adverse Effect" means a material adverse effect on (i)
the assets, liabilities, results of operations, condition (financial or
otherwise), business, or prospects of the Company and its Subsidiaries taken as
a whole, or (ii) the ability of the Company to issue and sell the securities
contemplated hereby and to perform its obligations under the Transaction
Documents.
"Nasdaq" means The Nasdaq Small Cap Market(SM), its successors
and assigns.
"Person" means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole
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proprietorship, unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
"SDS" means SDS Merchant Fund, LP
"SEC Filings" has the meaning set forth in Section 4.6.
"Securities" means the Shares, the Warrants and the Warrant
Shares.
"Shares" means the shares of Common Stock being purchased by the
Investors hereunder.
"Subsidiary" has the meaning set forth in Section 4.1.
"Transaction Documents" means this Agreement, the Warrants, the
Registration Rights Agreement and the Voting Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
"Xmark" means, Xmark Fund, L.P. and Xmark Fund, Ltd.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as defined below), Xmark and SDS
(collectively, the "Investors") shall severally, and not jointly, purchase, and
the Company shall sell and issue to the Investors, the Shares in the respective
amounts set forth opposite their names on Schedule I affixed hereto, in exchange
for the cash consideration set forth opposite their respective names on Schedule
I affixed hereto. Also at the Closing, the Company shall issue the Warrants to
the Investors, or their respective designees, in such amounts as set forth
opposite their respective names on Schedule I affixed hereto.
3. Closing. Upon confirmation that the other conditions to Closing
specified herein have been satisfied, the Company shall deliver to Xxxxxxxxxx
Xxxxxxx PC, in trust, a certificate or certificates, registered in such name or
names as the Investors may designate, representing the Shares purchased in the
Closing, with instructions that such certificates are to be held for release to
the Investors only upon payment of the purchase price to the Company as set
forth opposite the Investor's respective names on Schedule I affixed hereto.
Upon receipt by Xxxxxxxxxx Xxxxxxx PC of the certificates, each Investor shall
promptly cause a wire transfer in same day funds to be sent to the account of
the Company as instructed in writing by the Company, in an amount representing
such Investor's pro rata portion of the purchase price as set forth on Schedule
I affixed hereto. On the date (the "Closing Date") the Company receives such
funds, the certificates evidencing the Shares shall be released to the Investors
and the Warrants shall be issued to the Investors or their respective designees
(the "Closing"). The purchase and sale of the Shares and the issuance of the
Warrants in the Closing shall take place at the offices of
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Xxxxxxxxxx Xxxxxxx PC, 1330 Avenue of the Americas, 21st Floor, New York, New
York, or at such other location and on such other date as the Company and Xmark
shall mutually agree.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Investors on and as of the Closing Date,
that, except as set forth in the schedules delivered herewith (collectively, the
"Disclosure Schedules"):
4.1. Organization, Good Standing and Qualification. Each of
the Company and its Subsidiaries, a complete list of which is set forth in
Schedule 4.1 hereto ("Subsidiaries"), is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to carry on
its business as now conducted and to own its properties. Each of the Company and
its Subsidiaries is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or its leasing of property makes such qualification or licensing
necessary, unless the failure to so qualify would not have a Material Adverse
Effect.
4.2. Authorization. The Company has full power and authority
and has taken all requisite action on the part of the Company, its officers,
directors and stockholders necessary for (i) the authorization, execution and
delivery of the Transaction Documents, (ii) authorization of the performance of
all obligations of the Company hereunder or thereunder, and (iii) the
authorization, issuance (or reservation for issuance) and delivery of the
Securities. The Transaction Documents constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors' rights generally.
4.3. Capitalization.
(a) Schedule 4.3 sets forth (i) the authorized capital stock
of the Company on the date hereof, (ii) the number of shares of capital stock
issued and outstanding, (iii) the number of shares of capital stock issuable
pursuant to the Company's stock plans, and (iv) the number of shares of capital
stock issuable and reserved for issuance pursuant to securities (other than the
Shares and the Warrants) exercisable for, or convertible into or exchangeable
for any shares of capital stock of the Company. All of the issued and
outstanding shares of the Company's capital stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of pre-emptive rights
and were issued in full compliance with applicable law and any rights of third
parties. All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid,
nonassessable and free of pre-emptive rights, were issued in full compliance
with applicable law and any rights of third parties and are owned by the
Company, beneficially and of record, and, except as described on Schedule 4.3,
are subject to no lien, encumbrance or other adverse claim. No Person is
entitled to pre-emptive or similar statutory or contractual rights with respect
to any securities of the Company. Except as described on Schedule 4.3, there are
no outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which the Company or any of
its Subsidiaries is or may be obligated to issue any equity securities of any
kind and except as contemplated by this Agreement, neither the Company nor any
of its Subsidiaries is currently in
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negotiations for the issuance of any equity securities of any kind. Except as
described on Schedule 4.3 and except for the Registration Rights Agreement,
there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any of
the security holders of the Company relating to the securities of the Company.
Except as described on Schedule 4.3, the Company has not granted any Person the
right to require the Company to register any securities of the Company under the
1933 Act, whether on a demand basis or in connection with the registration of
securities of the Company for its own account or for the account of any other
Person.
(b) Schedule 4.3 sets forth a true and complete table
setting forth the pro forma capitalization of the Company on a fully diluted
basis giving effect to (i) the issuance of the Shares and the Warrants, (ii) any
adjustments in other securities resulting from the issuance of the Shares or the
Warrants, and (iii) the exercise or conversion of all outstanding securities.
Except as described on Schedule 4.3, the issuance and sale of the Securities
hereunder will not obligate the Company to issue shares of Common Stock or other
securities to any other Person (other than the Investors) and will not result in
the adjustment of the exercise, conversion, exchange or reset price of any
outstanding security.
(c) The Company does not have outstanding shareholder
purchase rights or any similar arrangement in effect giving any Person the right
to purchase any equity interest in the Company upon the occurrence of certain
events.
4.4. Valid Issuance. The Shares have been duly and validly
authorized and, when issued and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and shall be free and clear of all
encumbrances and restrictions, except for restrictions on transfer set forth in
the Transaction Documents or imposed by applicable securities laws. The Warrants
have been duly and validly authorized. Upon the due exercise of the Warrants,
the Warrant Shares will be validly issued, fully paid and non-assessable free
and clear of all encumbrances and restrictions, except for restrictions on
transfer set forth in the Transaction Documents or imposed by applicable
securities laws. The Company has reserved a sufficient number of shares of
Common Stock for issuance upon the exercise of the Warrants, free and clear of
all encumbrances and restrictions, except for restrictions on transfer set forth
in the Transaction Documents or imposed by applicable securities laws.
4.5. Consents. The execution, delivery and performance by the
Company of the Transaction Documents and the offer, issuance and sale of the
Securities require no consent of, action by or in respect of, or filing with,
any Person, governmental body, agency, or official other than those consents set
forth on Schedule 4.5 and 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. The Company has taken all action necessary to exempt
(i) the issuance and sale of the Securities, (ii) the issuance of the Warrant
Shares upon due exercise of the Warrants, and (iii) the other transactions
contemplated by the Transaction Documents from the provisions of any
anti-takeover, business combination or control share law or statute binding on
the Company or to
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which the Company or any of its assets and properties may be subject or any
provision of the Company's Articles of Incorporation, by-laws or any shareholder
rights agreement that is or could become applicable to the Investors as a result
of the transactions contemplated hereby, including without limitation, the
issuance of the Securities and the ownership, disposition or voting of the
Securities by the Investors or the exercise of any right granted to the
Investors pursuant to this Agreement or the other Transaction Documents.
4.6. Delivery of SEC Filings; Business. The Company has
provided the Investors with copies of the Company's most recent Annual Report on
Form 10-K for the fiscal year ended December 31, 2002 (the "10-K"), and all
other reports filed by the Company pursuant to the 1934 Act since the filing of
the 10-K and prior to the date hereof (collectively, the "SEC Filings"). The SEC
Filings are the only filings required of the Company pursuant to the 1934 Act
for such period. The Company and its Subsidiaries are engaged only in the
business described in the SEC Filings and the SEC Filings contain a complete and
accurate description in all material respects of the business of the Company and
its Subsidiaries, taken as a whole.
4.7. Use of Proceeds. The proceeds of the sale of the Shares
hereunder shall be used by the Company for sales, research and development and
general corporate purposes consistent with its business as of the Closing Date.
4.8. No Material Adverse Change. Except as (a) identified and
described in the SEC Filings or as described on Schedule 4.8(a), since December
31, 2002, there has not been, and (b) disclosed on Schedule 4.8(b), since June
30, 2003, there has not been:
(i) any change in the consolidated assets,
liabilities, financial condition or operating results of the Company from that
reflected in the financial statements included in the SEC Filings, except for
changes in the ordinary course of business which have not and could not
reasonably be expected to have a Material Adverse Effect, individually or in the
aggregate;
(ii) any declaration or payment of any dividend, or
any authorization or payment of any distribution, on any of the capital stock of
the Company, or any redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss,
whether or not covered by insurance to any assets or properties of the Company
or its Subsidiaries;
(iv) any waiver, not in the ordinary course of
business, by the Company or any Subsidiary of a material right or of a material
debt owed to it;
(v) any satisfaction or discharge of any lien, claim
or encumbrance or payment of any obligation by the Company or a Subsidiary,
except in the ordinary course of business and which is not material to the
assets, properties, financial condition, operating results, prospects or
business of the Company and its Subsidiaries taken as a whole;
(vi) any change or amendment to the Company's
Articles of Incorporation or by-laws, or material change to any material
contract or arrangement by which
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the Company or any Subsidiary is bound or to which any of their respective
assets or properties is subject;
(vii) any material labor difficulties or labor union
organizing activities with respect to employees of the Company or any
Subsidiary;
(viii) any transaction entered into by the Company or a
Subsidiary other than in the ordinary course of business;
(ix) the loss of the services of any key employee, or
material change in the composition or duties of the senior management of the
Company or any Subsidiary;
(x) the loss or threatened loss of any customer
which has had or could reasonably be expected to have a Material Adverse Effect;
or
(xi) any other event or condition of any character
that has had or could reasonably be expected to have a Material Adverse Effect.
4.9. SEC Filings.
(a) At the time of filing thereof, the SEC Filings complied
as to form in all material respects with the requirements of the 1934 Act and
did 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 the
light of the circumstances under which they were made, not misleading.
(b) Each registration statement and any amendment thereto
filed by the Company since January 1, 2001 pursuant to the 1933 Act and the
rules and regulations thereunder, as of the date such statement or amendment
became effective, complied as to form in all material respects with the 1933 Act
and did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading; and each prospectus filed pursuant to Rule 424(b) under
the 1933 Act, as of its issue date and as of the closing of any sale of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
4.10. No Conflict, Breach, Violation or Default. The
execution, delivery and performance of the Transaction Documents by the Company
and the issuance and sale of the Securities will not conflict with or result in
a breach or violation of any of the terms and provisions of, or constitute a
default under (i) the Company's Articles of Incorporation or the Company's
Bylaws, both as in effect on the date hereof (true and accurate copies of which
have been provided to the Investors before the date hereof), or (ii)(a) any
statute, rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company, any Subsidiary
or any of their respective assets or properties, or (b) except as set forth on
Schedule 4.10, any agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or a Subsidiary is bound or to
which any of their
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respective assets or properties is subject.
4.11. Tax Matters. Each of the Company and each Subsidiary has
timely prepared and filed all tax returns required to have been filed by the
Company or such Subsidiary with all appropriate governmental agencies and timely
paid all taxes shown thereon or otherwise owed by it. The charges, accruals and
reserves on the books of the Company in respect of taxes for all fiscal periods
are adequate in all material respects, and there are no material unpaid
assessments against the Company or any Subsidiary nor, to the Company's
Knowledge, any basis for the assessment of any additional taxes, penalties or
interest for any fiscal period or audits by any federal, state or local taxing
authority except for any assessment which is not material to the Company and its
Subsidiaries, taken as a whole. All taxes and other assessments and levies that
the Company or any Subsidiary is required to withhold or to collect for payment
have been duly withheld and collected and paid to the proper governmental entity
or third party when due. There are no tax liens or claims pending or, to the
Company's Knowledge, threatened against the Company or any Subsidiary or any of
their respective assets or property. Except as described on Schedule 4.11, there
are no outstanding tax sharing agreements or other such arrangements between the
Company and any Subsidiary or other corporation or entity. Neither the Company
nor any Subsidiary is presently undergoing any audit by a taxing authority, or
has waived or extended any statute of limitations at the request of any taking
authority.
4.12. Title to Properties. Except as disclosed in the SEC
Filings or as set forth on Schedule 4.12, the Company and each Subsidiary has
good and marketable title to all real properties and all other properties and
assets owned by it, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with the use
made or currently planned to be made thereof by them; and except as disclosed in
the SEC Filings, the Company and each Subsidiary holds any leased real or
personal property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or currently planned to be made
thereof by them.
4.13. Certificates, Authorities and Permits. The Company and
each Subsidiary possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by it, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
such Subsidiary, could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate.
4.14. No Labor Disputes. No material labor dispute with the
employees of the Company or any Subsidiary exists or, to the Company's
Knowledge, is imminent.
4.15. Intellectual Property.
(a) All Intellectual Property of the Company and its
Subsidiaries is currently in compliance with all legal requirements (including
timely filings, proofs and payments of fees) and is valid and enforceable.
Except as listed on Schedule 4.15(a), no Intellectual Property of the Company or
its Subsidiaries which is necessary for the conduct of Company's and each of its
Subsidiaries' respective businesses as currently conducted or as currently
proposed to be
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conducted has been or is now involved in any cancellation, dispute or
litigation, and, to the Company's Knowledge, no such action is threatened.
Except as listed on Schedule 4.15(a), no patent of the Company or its
Subsidiaries has been or is now involved in any interference, reissue,
re-examination or opposition proceeding.
(b) All of the licenses and sublicenses and consent, royalty
or other agreements concerning Intellectual Property which are necessary for the
conduct of the Company's and each of its Subsidiaries' respective businesses as
currently conducted or as currently proposed to be conducted to which the
Company or any Subsidiary is a party or by which any of their assets are bound
(other than generally commercially available, non-custom, off-the-shelf software
application programs having a retail acquisition price of less than $10,000 per
license) (collectively, "License Agreements") are valid and binding obligations
of the Company or its Subsidiaries that are parties thereto and, to the
Company's Knowledge, the other parties thereto, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally, and
there exists no event or condition which will result in a material violation or
breach of or constitute (with or without due notice or lapse of time or both) a
default by the Company or any of its Subsidiaries under any such License
Agreement.
(c) The Company and its Subsidiaries own or have the valid
right to use all of the Intellectual Property that is necessary for the conduct
of the Company's and each of its Subsidiaries' respective businesses as
currently conducted or as currently proposed to be conducted, free and clear of
all liens, encumbrances, adverse claims or obligations to license all such owned
Intellectual Property and Confidential Information, other than licenses entered
into in the ordinary course of the Company's and its Subsidiaries' businesses.
The Company and its Subsidiaries have a valid and enforceable right to use all
third party Intellectual Property and Confidential Information used or held for
use in the respective businesses of the Company and its Subsidiaries as
currently conducted or as currently proposed to be conducted.
(d) The conduct of the Company's and its Subsidiaries'
businesses as currently conducted and as currently proposed to be conducted does
not and will not infringe any Intellectual Property rights of any third party or
any confidentiality obligation owed to a third party. To the Company's
Knowledge, the Intellectual Property and Confidential Information of the Company
and its Subsidiaries which are necessary for the conduct of Company's and each
of its Subsidiaries' respective businesses as currently conducted or as
currently proposed to be conducted are not being Infringed by any third party.
Except as set forth on Schedule 4.15(d), there is no litigation or order pending
or outstanding or, to the Company's Knowledge, threatened or imminent, that
seeks to limit or challenge or that concerns the ownership, use, validity or
enforceability of any Intellectual Property or Confidential Information of the
Company and its Subsidiaries and the Company's and its Subsidiaries' use of any
Intellectual Property or Confidential Information owned by a third party, and,
to the Company's Knowledge, there is no valid basis for the same.
(e) The consummation of the transactions contemplated hereby
will not result in the alteration, loss, impairment of or restriction on the
Company's or any of its Subsidiaries' ownership or right to use any of the
Intellectual Property or Confidential Information which is
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necessary for the conduct of Company's and each of its Subsidiaries' respective
businesses as currently conducted or as currently proposed to be conducted.
(f) To the Company's knowledge, all software owned by the
Company or any of its Subsidiaries, and, to the Company's Knowledge, all
software licensed from third parties by the Company or any of its Subsidiaries,
(i) is free from any material defect, bug, virus, or programming, design or
documentation error; (ii) operates and runs in a reasonable and efficient
business manner; and (iii) conforms in all material respects to the
specifications and purposes thereof.
(g) The Company and its Subsidiaries have taken reasonable
steps to protect the Company's and its Subsidiaries' rights in their
Intellectual Property and Confidential Information. Each employee, consultant
and contractor who has had access to Confidential Information which is necessary
for the conduct of Company's and each of its Subsidiaries' respective businesses
as currently conducted or as currently proposed to be conducted has executed an
agreement to maintain the confidentiality of such Confidential Information and
has executed appropriate agreements that are substantially consistent with the
Company's standard forms therefor. To the Company's knowledge, there has been no
material disclosure of any of the Company's or its Subsidiaries' Confidential
Information to any third party without the Company's consent.
4.16. Environmental Matters. To the Company's knowledge,
neither the Company nor any Subsidiary is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "Environmental
Laws"), owns or operates any real property contaminated with any substance that
is subject to any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, and is subject to any claim
relating to any Environmental Laws, which violation, contamination, liability or
claim has had or could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate; and there is no pending or, to the Company's
Knowledge, threatened investigation that might lead to such a claim.
4.17. Litigation. Except as disclosed in the SEC Filings,
there are no pending actions, suits or proceedings against or affecting the
Company, its Subsidiaries or any of its or their properties; and to the
Company's Knowledge, no such actions, suits or proceedings are threatened or
contemplated.
4.18. Financial Statements. The financial statements included
in each SEC Filing fairly present the consolidated financial position of the
Company as of the dates shown and its consolidated results of operations and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis. Except as set forth in the financial
statements of the Company included in the SEC Filings filed prior to the date
hereof, neither the Company nor any of its Subsidiaries has incurred any
liabilities, contingent or otherwise, except those which, individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse
Effect.
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4.19. Insurance Coverage. The Company and each Subsidiary
maintains in full force and effect insurance coverage listed on Schedule 4.18
and the Company reasonably believes such insurance coverage is adequate.
4.20. Brokers and Finders. No Person will have, as a result of
the transactions contemplated by this Agreement, any valid right, interest or
claim against or upon the Company, any Subsidiary or an Investor for any
commission, fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company, other than as
described in Schedule 4.20.
4.21. No Directed Selling Efforts or General Solicitation.
Neither the Company nor any Person acting on its behalf has conducted any
"general solicitation" or "general advertising" (as those terms are used in
Regulation D) in connection with the offer or sale of any of the Securities.
4.22. No Integrated Offering. Neither the Company nor any of
its Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any
offers to buy any security, under circumstances that would adversely affect
reliance by the Company on Section 4(2) for the exemption from registration for
the transactions contemplated hereby or would require registration of the
Securities under the 1933 Act.
4.23. Private Placement. Subject to the accuracy of the
representations and warranties of the Investors contained in Section 5 hereof,
the offer and sale of the Securities to the Investors as contemplated hereby is
exempt from the registration requirements of the 1933 Act.
4.24. Questionable Payments. Neither the Company nor any of
its Subsidiaries nor, to the Company's Knowledge, any of their respective
current or former shareholders, directors, officers, employees, agents or other
Persons acting on behalf of the Company or any Subsidiary, has on behalf of the
Company or any Subsidiary or in connection with their respective businesses: (a)
used any corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity; (b) made any direct or
indirect unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or unrecorded fund
of corporate monies or other assets; (d) made any false or fictitious entries on
the books and records of the Company or any Subsidiary; or (e) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment of
any nature.
4.25. Transactions with Affiliates. Except as disclosed in SEC
Filings made on or prior to the date hereof, none of the officers or directors
of the Company and, to the Company's Knowledge, none of the employees of the
Company is presently a party to any transaction with the Company or a Subsidiary
or to a presently contemplated transaction (other than for services as
employees, officers and directors) that would be required to be disclosed
pursuant to Item 404 of Regulation S-K promulgated under the 1933 Act, without
regard to the dollar thresholds contained in such Item.
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4.26. Disclosures. The written materials delivered to the
Investors in connection with the transactions contemplated by the Transaction
Documents do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
5. Representations and Warranties of the Investors. Each of the
Investors hereby severally, and not jointly, represents and warrants to the
Company that:
5.1. Authorization. The execution, delivery and performance
by the Investor of the Transaction Documents to which such Investor is a party
have been duly authorized and will each constitute the valid and legally binding
obligation of the Investor, enforceable against the Investor in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors' rights generally.
5.2. Purchase Entirely for Own Account. The Securities to be
received by the Investor hereunder will be acquired for the Investor's own
account, not as nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the 1933 Act, and the Investor
has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the 1933 Act. The Investor is not a
registered broker dealer or an entity engaged in the business of being a broker
dealer.
5.3. Investment Experience. The Investor acknowledges that it
can bear the economic risk and complete loss of its investment in the Securities
and has such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment contemplated
hereby.
5.4. Disclosure of Information. The Investor has had an
opportunity to receive all additional information related to the Company
requested by it and to ask questions of and receive answers from the Company
regarding the Company, its business and the terms and conditions of the offering
of the Securities. The Investor acknowledges receipt of copies of the SEC
Filings. Neither such inquiries nor any other due diligence investigation
conducted by the Investor shall modify, amend or affect the Investor's right to
rely on the Company's representations and warranties contained in this
Agreement.
5.5. Restricted Securities. The Investor understands that the
Securities are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances.
5.6. Legends.
(a) It is understood that, except as provided below,
certificates evidencing such Securities may bear the following or any similar
legend:
"The securities represented hereby may not be transferred unless
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(i) such securities have been registered for
sale pursuant to the Securities Act of 1933, as
amended, or (ii) the Company has received an
opinion of counsel satisfactory to it that such
transfer may lawfully be made without
registration under the Securities Act of 1933 or
qualification under applicable state securities
laws."
(b) If required by the authorities of any state in
connection with the issuance of sale of the Securities, the legend required by
such state authority.
(c) From and after the registration for resale pursuant to
the Registration Rights Agreement, the Company shall, upon an Investor's written
request, promptly cause certificates evidencing the Securities to be replaced
with certificates which do not bear such restrictive legends, and Warrant Shares
subsequently issued upon due exercise of the Warrants shall not bear such
restrictive legends provided that such Warrant Shares are registered for resale
pursuant to the Registration Rights Agreement. When the Company is required to
cause unlegended certificates to replace previously issued legended
certificates, if unlegended certificates are not delivered to an Investor within
three (3) Business Days of submission by that Investor of legended
certificate(s) to the Company's transfer agent together with a representation
letter in customary form, the Company shall be liable to the Investor for a
penalty equal to 1.5% of the aggregate purchase price of the Securities
evidenced by such certificate(s) for each 10-day period (or portion thereof)
beyond such three (3) Business Day that the unlegended certificates have not
been so delivered.
5.7. Accredited Investor. The Investor is an accredited
investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933
Act.
5.8. No General Solicitation. The Investor did not learn of
the investment in the Securities as a result of any "general advertising" or
"general solicitation."
5.9. Brokers and Finders. No Person will have, as a result of
the transactions contemplated by this Agreement, any valid right, interest or
claim against or upon the Company, any Subsidiary or an Investor for any
commission, fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Investors.
6. Conditions to Closing.
6.1. Conditions to the Investors' Obligations. The obligation
of the Investors to purchase the Securities at the Closing is subject to the
fulfillment to the Investors' satisfaction, on or prior to the Closing Date, of
the following conditions, any of which may be waived by a particular Investor
solely with respect to such Investor's obligations hereunder:
(a) The representations and warranties made by the Company
in Section 4 hereof shall be true and correct at all times prior to and on the
Closing Date. The Company shall have performed in all material respects all
obligations and conditions herein required to be performed or observed by it on
or prior to the Closing Date.
(b) The Company shall have obtained in a timely fashion any
and all consents, permits, approvals, registrations and waivers necessary or
appropriate for consummation of the
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purchase and sale of the Securities all of which shall be in full force
and effect.
(c) The Company shall have executed and delivered the
Registration Rights Agreement.
(d) The Company and the Key Holders shall have executed and
delivered the Voting Agreement.
(e) No judgment, writ, order, injunction, award or decree of
or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by any
governmental authority, or self-regulatory organization, including without
limitation, Nasdaq, enjoining or preventing the consummation of the transactions
contemplated hereby or in the other Transaction Documents.
(f) The Company shall have delivered a Certificate, executed
on behalf of the Company by its Chief Executive Officer or its Chief Financial
Officer, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in subsections (a), (b), (e) and (f) of this Section 6.1.
(g) The Company shall have delivered a Certificate, executed
on behalf of the Company by its Secretary, dated as of the Closing Date,
certifying the resolutions adopted by the Board of Directors of the Company
approving the transactions contemplated by this Agreement and the other
Transaction Documents and the issuance of the Securities, certifying the current
versions of the Articles of Incorporation and by-laws of the Company and
certifying as to the signatures and authority of persons signing the Transaction
Documents and related documents on behalf of the Company.
(h) The Investors shall have received an opinion from
Xxxxxxx, Street and Deinard, the Company's counsel, dated as of the Closing
Date, in form and substance reasonably acceptable to the Investors and
addressing such legal matters as the Investors may reasonably request.
(i) No stop order or suspension of trading shall have been
imposed by Nasdaq, the SEC or any other governmental regulatory body with
respect to public trading in the Common Stock.
6.2. Conditions to Obligations of the Company. The Company's
obligation to sell and issue the Securities at the Closing is subject to the
fulfillment to the satisfaction of the Company on or prior to the Closing Date
of the following conditions, any of which may be waived by the Company:
(a) The representations and warranties made by the Investors
in Section 5 hereof shall be true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
with the same force and effect as if they had been made on and as of said date.
(b) The Investors shall have executed and delivered the
Registration Rights
-14-
Agreement.
(c) Xmark shall have executed and delivered the Voting
Agreement.
(d) The Investors shall have delivered their pro rata
portion of the Purchase Price to the Company.
(e) No judgment, writ, order, injunction, award or decree of
or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by any
governmental authority, or self-regulatory organization, including without
limitation, Nasdaq, enjoining or preventing the consummation of the transactions
contemplated hereby or in the other Transaction Documents.
7. Covenants and Agreements of the Company.
7.1. Reservation of Common Stock. The Company shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purpose of providing for the exercise of the
Warrants, such number of shares of Common Stock as shall from time to time equal
the number of shares sufficient to permit the exercise of the Warrants issued
pursuant to this Agreement in accordance with their respective terms.
7.2. Reports. The Company will furnish to such Investors
and/or their assignees such information relating to the Company and its
Subsidiaries as from time to time may reasonably be requested by such Investors
and/or their assignees; provided, however, that the Company shall not disclose
material nonpublic information to the Investors, or to advisors to or
representatives of the Investors, unless prior to disclosure of such information
the Company identifies such information as being material nonpublic information
and provides the Investors, such advisors and representatives with the
opportunity to accept or refuse to accept such material nonpublic information
for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect thereto.
7.3. No Conflicting Agreements. The Company will not take any
action, enter into any agreement or make any commitment that would conflict or
interfere in any material respect with the obligations to the Investors under
the Transaction Documents.
7.4. Insurance. The Company shall not materially reduce the
insurance coverages described in Section 4.19.
7.5. Compliance with Laws. The Company will comply in all
material respects with all applicable laws, rules, regulations, orders and
decrees of all governmental authorities, except to the extent non-compliance
would not have a Material Adverse Effect.
7.6. Listing of Underlying Shares and Related Matters. So
long as Xmark owns any of the Securities, the Company will use commercially
reasonable efforts to cause its Common Stock to be listed and trading on the
Nasdaq and, once so listed and trading, will use commercially reasonable efforts
to comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of such market or exchange, as applicable.
If, as
-15-
and when the Company's Common Stock or other securities are quoted on Nasdaq or
traded on any other principal stock exchange or market, the Company shall
include in such application the Shares and the Warrant Shares and will take such
other action as is necessary to cause such Common Stock to be so listed.
7.7. [Intentionally Omitted].
7.8. Designated Director and Representative. From and after
the date hereof until Xmark, together with its Affiliates, no longer
"beneficially owns" (as that term is defined in Rule 13d-3 under the 0000 Xxx)
at least 500,000 shares of Common Stock of the Company, Xmark shall have the
rights specified in this Section 7.8.
(a) Xmark shall have the right, from time to time, (A) to
designate one member of the Board (the "Xmark Director"), who shall also, if the
Xmark Director so desires, serve on each or any committee of the Board, and also
(B) to have one representative of Xmark (the "Representative") attend as an
observer all meetings of the Board (and each committee meeting thereof),
provided that in the case of telephonic meetings conducted in accordance with
the Company's bylaws and applicable law, the Representative shall be given the
opportunity to participate in such telephonic meetings.
(b) To the extent Xmark exercise its rights under this
Section 7.8, Xmark shall furnish the name and address of the Representative and
the Xmark Director to the Company. The Xmark Director shall be entitled to all
of the rights, benefits and privileges of all other members of the board of
directors of the Company. The Company shall give the Representative written
notice of every meeting of its Board (and any committee meeting thereof) at the
same time and in the same manner as notice is given to the directors of the
Company. The Company shall bear the reasonable costs of the Representative
associated with the attendance or participation in any meetings of the Board.
The Representative shall be entitled to receive all written materials and other
information given to the directors of the Company in connection with such
meetings or otherwise at the same time such materials and information are given
to the directors. The Representative shall be entitled to consult with and
advise the board on significant business issues with respect to the Company and
its Subsidiaries, including management's proposed annual operation plans for the
Company and its Subsidiaries, and management will meet with the Representative
regularly during each year at the Company's facilities at mutually agreeable
times and intervals for such consultation and advice and to discuss said plans.
7.9. Termination of Certain Covenants. The provisions of
Sections 7.2 through 7.5 shall terminate and be of no further force and effect
upon the date on which the Company's obligations under the Registration Rights
Agreement to register or maintain the effectiveness of any registration covering
the Registrable Securities (as such term is defined in the Registration Rights
Agreement) shall terminate.
8. Survival and Indemnification.
8.1. Survival. All representations, warranties, covenants and
agreements contained in this Agreement shall be deemed to be representations,
warranties, covenants and agreements as of the date hereof and shall survive the
execution and delivery of this Agreement
-16-
for a period of three (3) years from the date of this Agreement; provided,
however, that the provisions contained in Section 7 hereof shall survive in
accordance therewith.
8.2. Indemnification. The Company agrees to indemnify and
hold harmless, on an after-tax and after insurance recovery basis, each Investor
and its Affiliates and their respective directors, officers, employees and
agents from and against any and all losses, claims, damages, liabilities and
expenses (including without limitation reasonable attorney fees and
disbursements and other expenses incurred in connection with investigating,
preparing or defending any action, claim or proceeding, pending or threatened
and the costs of enforcement hereof) (collectively, "Losses") to which such
Person may become subject as a result of any breach of representation, warranty,
covenant or agreement made by or to be performed on the part of the Company
under the Transaction Documents, and will reimburse any such Person for all such
amounts as they are incurred by such Person.
8.3. Conduct of Indemnification Proceedings. Promptly after
receipt by any Person (the "Indemnified Person") of notice of any demand, claim
or circumstances which would or might give rise to a claim or the commencement
of any action, proceeding or investigation in respect of which indemnity may be
sought pursuant to Section 8.2, such Indemnified Person shall promptly notify
the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person, and shall assume the payment of all fees and expenses; provided,
however, that the failure of any Indemnified Person so to notify the Company
shall not relieve the Company of its obligations hereunder except to the extent
that the Company is materially prejudiced by such failure to notify. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company and the Indemnified Person shall
have mutually agreed to the retention of such counsel; or (ii) in the reasonable
judgment of counsel to such Indemnified Person representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not be liable for any settlement of
any proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Company shall indemnify and hold harmless such
Indemnified Person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior written
consent of the Indemnified Person, which consent shall not be unreasonably
withheld, the Company shall not effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Person from all liability arising out of such proceeding.
9. Miscellaneous.
9.1. Successors and Assigns. This Agreement may not be
assigned by a party hereto without the prior written consent of the Company or
the Investors, as applicable; provided, however, that an Investor may assign its
rights and delegate its duties hereunder in whole or in part to an Affiliate or
to a third party acquiring some or all of its Securities in a private
transaction without the prior written consent of the Company or the other
Investors, after
-17-
notice duly given by such Investor to the Company and the other Investors,
provided, that no such assignment or obligation shall affect the obligations of
such Investor hereunder. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
9.2. Counterparts; Faxes. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed via facsimile, which shall be deemed an original.
9.3. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.4. Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed to the party to be notified at the
address as follows, or at such other address as such party may designate by ten
days' advance written notice to the other party:
If to the Company:
Antares Pharma, Inc.
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
With a copy to:
Xxxxxxx, Street and Deinard Professional
Association
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
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If to the Investors:
to the addresses set forth on Schedule I hereto.
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
1330 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000.000.0000
9.5. Expenses. The Company shall pay the reasonable fees and
expenses of counsel to the Investors. Such expenses shall be paid not later than
the Closing. The Company shall reimburse the Investors upon demand for all
reasonable out-of-pocket expenses incurred by the Investors, including without
limitation reimbursement of reasonable attorneys' fees and disbursements, in
connection with any amendment, modification or waiver of this Agreement or the
other Transaction Documents. In the event that legal proceedings are commenced
by any party to this Agreement against another party to this Agreement in
connection with this Agreement or the other Transaction Documents, the party or
parties which do not prevail in such proceedings shall severally, but not
jointly, pay their pro rata share of the reasonable attorneys' fees and other
reasonable out-of-pocket costs and expenses incurred by the prevailing party in
such proceedings.
9.6. Amendments and Waivers. 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 and either retroactively or
prospectively), only with the written consent of the Company and the Investors;
provided, however, that any provision hereof which relates to a specific
Investor (including without limitation Section 7.8 and Section 9.7 hereof, may
only be amended or waived by that particular Investor. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Securities purchased under this Agreement at the time outstanding, each
future holder of all such securities, and the Company.
9.7. Publicity. No public release or announcement concerning
the transactions contemplated hereby shall be issued by the Company or the
Investors without the prior consent of the Company (in the case of a release or
announcement by the Investors) or Xmark (in the case of a release or
announcement by the Company) (which consents shall not be unreasonably
withheld), except as such release or announcement may be required by law or the
applicable rules or regulations of any securities exchange or securities market,
in which case the Company or the Investors, as the case may be, shall allow
Xmark or the Company, as applicable, to the extent reasonably practicable in the
circumstances, reasonable time to comment on such release or announcement in
advance of such issuance.
9.8. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
-19-
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
9.9. Entire Agreement. This Agreement, including the
Schedules, Exhibits and the Disclosure Schedules, and the other Transaction
Documents constitute the entire agreement among the parties hereof with respect
to the subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
9.10. Further Assurances. The parties shall execute and
deliver all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions contemplated
hereby and to evidence the fulfillment of the agreements herein contained.
9.11. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
[signature page follows]
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement or
caused their duly authorized officers to execute this Agreement as of the date
first above written.
ANTARES PHARMA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
XMARK FUND, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Operating Officer
XMARK FUND, LTD.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx,
Title: Chief Operating Officer
SDS MERCHANT FUND, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Member
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SCHEDULE I
Investors
NAME AND ADDRESS NUMBER OF SHARES OF NUMBER OF AGGREGATE
OF INVESTOR COMMON STOCK WARRANTS PURCHASE PRICE
-------------------------------------------------------------------------------
Xmark Fund, L.P. 317,500 238,125 $ 317,500
000 Xxxx 00xx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attn: Xxxxxxxx X. Xxxx
Xmark Fund, Ltd. 682,500 511,875 $ 682,500
000 Xxxx 00xx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attn: Xxxxxxxx X. Xxxx
SDS Merchant Fund, L.P. 1,000,000 750,000 $ 1,000,000
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxx
Fax: 000-000-0000
-22-
