SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "AGREEMENT") is dated as of November 6,
2003, by and among Cytogen Corporation, a Delaware corporation (the "COMPANY"),
and the purchasers identified on the signature pages hereto (each a "PURCHASER"
and collectively the "PURCHASERS"); and
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company desires to issue and sell to the Purchasers, and the Purchasers,
severally and not jointly, desire to purchase from the Company in the aggregate,
up to $20,500,000 of the Company's Common Stock, as more fully described in this
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agrees
as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms have the
meanings indicated in this Section 1.1:
"ACTION" shall have the meaning ascribed to such term in Section
3.1(j).
"AFFILIATE" means any Person that, directly or indirectly through one
or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule
144. With respect to a Purchaser, any investment fund or managed account
that is managed on a discretionary basis by the same investment manager as
such Purchaser will be deemed to be an Affiliate of such Purchaser.
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in
the State of Delaware are authorized or required by law or other
governmental action to close.
"CLOSING" means the closing of the purchase and sale of the Common
Stock pursuant to Section 2.1.
"CLOSING DATE" means the date of the Closing.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, $0.01 par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"COMMON STOCK EQUIVALENTS" means any securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time
convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock.
"COMPANY COUNSEL" means Xxxx and Xxxx LLP, counsel to the Company.
"DISCLOSURE SCHEDULES" means the Disclosure Schedules concurrently
delivered herewith.
"DISCLOSURE MATERIALS" shall have the meaning ascribed to such term in
Section 3.1(h).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INTELLECTUAL PROPERTY RIGHTS" shall have the meaning ascribed to such
term in Section 3.1(o).
"LIENS" means a lien, charge, security interest, encumbrance, right of
first refusal or other restriction.
"MATERIAL ADVERSE EFFECT" shall have the meaning ascribed to such term
in Section 3.1(b).
"MATERIAL PERMITS" shall have the meaning ascribed to such term in
Section 3.1(m).
"PER SHARE PURCHASE PRICE" equals $11.00.
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
"REGISTRATION STATEMENT" means the Company's Registration Statement on
Form S-3 (Reg. Stmt. No. 333-110040) as filed with the Commission on
October 29, 2003.
"RULE 144," means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SEC REPORTS" shall have the meaning ascribed to such term in Section
3.1(h).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the shares of Common Stock issued to each Purchaser
pursuant to this Agreement.
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"SUBSCRIPTION AMOUNT" means, as to each Purchaser, the amounts set
forth below such Purchaser's signature block on the signature page hereto,
in United States dollars and in immediately available funds.
"SUBSIDIARY" shall have the meaning ascribed to such term in Section
3.1(a).
"TRADING DAY" means (i) a day on which the Common Stock is traded on a
Trading Market, or (ii) if the Common Stock is not listed on a Trading
Market, a day on which the Common Stock is traded on the over-the-counter
market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock
is not quoted on the OTC Bulletin Board, a day on which the Common Stock is
quoted in the over-the-counter market as reported by the National Quotation
Bureau Incorporated (or any similar organization or agency succeeding its
functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof,
then Trading Day shall mean a Business Day.
"TRADING MARKET" means the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market or the Nasdaq SmallCap Market.
"TRANSACTION DOCUMENTS" means this Agreement and any other documents
or agreements executed in connection with the transactions contemplated
hereunder.
ARTICLE II.
PURCHASE AND SALE
2.1 CLOSING. At the Closing, the Purchasers shall purchase, severally and
not jointly, and the Company shall issue and sell, in the aggregate, up to
$20,500,000 of Common Stock. Each Purchaser shall purchase from the Company, and
the Company shall issue and sell to each Purchaser, a number of Shares equal to
such Purchaser's Subscription Amount divided by the Per Share Purchase Price.
2.2 CLOSING CONDITIONS.
(a) At the Closing (unless otherwise specified below), the Company
shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) (a) within 5 Trading Days of the Closing, a certificate
evidencing that number of Shares equal to such Purchaser's
Subscription Amount divided by the Per Share Purchase Price,
registered in the name of such Purchaser; or
(b) upon receipt of requisite written request by a Purchaser
and all requisite information, transmission of such
Purchaser's respective Shares electronically to such
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Purchaser by crediting the account so requested by such
Purchaser through the Deposit Withdrawal Agent Commission
system.
(iii)a legal opinion of Company Counsel, in the form of EXHIBIT
A hereto, addressed to the Purchasers.
(b) At the Closing each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this Agreement duly executed by such; and
(ii) such Purchaser's Subscription Amount by wire transfer to the
account of the Company per the written instructions of the
Company.
(c) As of the Closing Date, there shall have been no Material Adverse
Effect with respect to the Company since the date hereof.
(d) As of the Closing Date, trading in the Common Stock shall not have
been suspended by the Commission (except for any suspension of trading of
limited duration agreed to by the Company, which suspension shall be
terminated prior to the Closing).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth
under the corresponding section of the Disclosure Schedules or as set forth in
the SEC Reports, the Company hereby makes the following representations and
warranties as of the date hereof to each Purchaser:
(a) SUBSIDIARIES. The Company has no direct or indirect subsidiaries
("Subsidiaries"). The Company owns, directly or indirectly, all of the
capital stock of each Subsidiary free and clear of any lien, charge,
security interest, encumbrance, right of first refusal or other restriction
(collectively, "LIENS"), and all the issued and outstanding shares of
capital stock of each Subsidiary are validly issued and are fully paid,
nonassessable and free of preemptive and similar rights.
(b) ORGANIZATION AND QUALIFICATION. Each of the Company and the
Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Subsidiary is
in violation of any of the provisions of its respective certificate or
articles of incorporation, bylaws or other organizational or charter
documents. Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where
the failure to be so qualified or in good standing, as the case may be,
would not have or reasonably be expected to result in (i) a material
adverse effect on the legality, validity or enforceability of any
Transaction Document, (ii) a material adverse effect on the results of
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operations, assets, business or financial condition of the Company and the
Subsidiaries, taken as a whole, or (iii) adversely impair the Company's
ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii), a
"MATERIAL ADVERSE EFFECT").
(c) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no
further action is required by the Company in connection therewith. Each
Transaction Document has been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors'
rights generally and (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies.
(d) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated thereby do not and will not (i) conflict with
or violate any provision of the Company's or any Subsidiary's certificate
or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a Company
or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or asset of
the Company or any Subsidiary is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or
a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as would not have or reasonably be expected to result
in a Material Adverse Effect.
(e) FILINGS, CONSENTS AND APPROVALS. The Company is not required to
obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of the Transaction
Documents, other than (a) the filing with the Commission of a Prospectus
Supplement to the Registration Statement, the application(s) to each
Trading Market for the listing of the Shares for trading thereon in the
time and manner required thereby, and applicable Blue Sky filings; (b)
obtaining consent from its Trading Market to consummate the transaction
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without prior stockholder approval; or (c) such as have already been
obtained or such exemptive filings as are required to be made under
applicable securities laws.
(f) ISSUANCE OF THE SHARES. The Shares are duly authorized and the
Shares, when issued and paid for in accordance with the Transaction
Documents, will be duly and validly issued, fully paid and nonassessable,
free and clear of all Liens. The Company has reserved from its duly
authorized capital stock, the maximum number of shares of Common Stock
issuable pursuant to this Agreement.
(g) CAPITALIZATION. The capitalization of the Company is as described
in the Company's periodic reports filed with the Commission as updated by
any current reports filed with the Commission, and as may be adjusted for
employee option exercises, issuances and cancellations. The Company has not
issued any capital stock since such filings other than pursuant to the
exercise of employee stock options under the Company's stock option plans,
the issuance of shares of Common Stock to employees pursuant to the
Company's employee stock purchase plan, pursuant to the conversion or
exercise of outstanding Common Stock Equivalents and pursuant to publicly
disclosed equity financings. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction Documents,
except as exercised or waived as of the date hereof. Except as a result of
the purchase and sale of the Shares, there are no outstanding options,
warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exchangeable for, or giving any Person any right to
subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common
Stock, or securities or rights convertible or exchangeable into shares of
Common Stock. The issue and sale of the Shares will not obligate the
Company to issue shares of Common Stock or other securities to any Person
(other than the Purchasers) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or reset
price under such securities.
(h) SEC REPORTS; FINANCIAL STATEMENTS. The Company has filed all
reports required to be filed by it under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
three years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing
materials, including the exhibits thereto and incorporated by reference
therein, being collectively referred to herein as the "SEC REPORTS" and,
together with the Disclosure Schedules to this Agreement, the "DISCLOSURE
MATERIALS") on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
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Reports complied in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved ("GAAP"), except
as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of
and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to
normal year-end audit adjustments.
(i) MATERIAL CHANGES. Since the date of the latest audited financial
statements included within the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected in the
Company's financial statements pursuant to GAAP or required to be disclosed
in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares
of its capital stock; (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company
stock option plans; and (vi) the Company has not had any disagreement with
its independent auditors that would require public disclosure.
(j) LITIGATION. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any
of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign) (collectively, an "ACTION") which (i)
adversely affects or challenges the legality, validity or enforceability of
any of the Transaction Documents or the Shares or (ii) could, if there were
an unfavorable decision, have or reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. There has not been,
and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or
former director or officer of the Company. The Commission has not issued
any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the
Exchange Act or the Securities Act.
(k) LABOR RELATIONS. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees
of the Company which could reasonably be expected to result in a Material
Adverse Effect.
(l) COMPLIANCE. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that has not
been waived that, with notice or lapse of time or both, would result in a
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default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received notice of a claim that it is in default under or that
it is in violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has been
waived), (ii) is in violation of any order of any court, arbitrator or
governmental body, or (iii) is or has been in violation of any statute,
rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its
business, except in the case of clauses (i), (ii) and (iii) as would not
have or reasonably be expected to result in a Material Adverse Effect.
(m) REGULATORY PERMITS. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the
failure to possess such permits would not have or reasonably be expected to
result in a Material Adverse Effect ("MATERIAL PERMITS"), and neither the
Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit.
(n) TITLE TO ASSETS. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title in all personal property owned by them that is material to
the business of the Company and the Subsidiaries, in each case free and
clear of all Liens, except for Liens as do not materially affect the value
of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries
and Liens for the payment of federal, state or other taxes, the payment of
which is neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are held by
them under valid, subsisting and enforceable leases of which the Company
and the Subsidiaries are in compliance.
(o) PATENTS AND TRADEMARKS. To the knowledge of the Company and each
Subsidiary, the Company and the Subsidiaries have, or have rights to use,
all patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, licenses and other similar rights
that are necessary or material for use in connection with their respective
businesses as described in the SEC Reports and which the failure to so have
could have or reasonably be expected to result in a Material Adverse Effect
(collectively, the "INTELLECTUAL PROPERTY RIGHTS"). Neither the Company nor
any Subsidiary has received a written notice that the Intellectual Property
Rights used by the Company or any Subsidiary violates or infringes upon the
rights of any Person. To the knowledge of the Company, all such
Intellectual Property Rights are enforceable.
(p) INSURANCE. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in
which the Company and the Subsidiaries are engaged. Neither the Company nor
any Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
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obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(q) TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. None of the officers
or directors of the Company and, to the knowledge of the Company, none of
the employees of the Company is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director,
trustee or partner, in each case in excess of $60,000 other than (a) for
payment of salary or consulting fees for services rendered, (b)
reimbursement for expenses incurred on behalf of the Company and (c) for
other employee benefits, including stock option agreements under any stock
option plan of the Company.
(r) INTERNAL ACCOUNTING CONTROLS. The Company and each of its
subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company
has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-14 and 15d-14) for the Company and designed such disclosures
controls and procedures to ensure that material information relating to the
Company, including its subsidiaries, is made known to the certifying
officers by others within those entities, particularly during the period in
which the Company's Form 10-K or 10-Q, as the case may be, is being
prepared. The Company's certifying officers have evaluated the
effectiveness of the Company's controls and procedures as of a date within
90 days prior to the filing date of the Form 10-K for the fiscal year ended
December 31, 2002 (such date, the "EVALUATION DATE"). The Company presented
in its most recently filed Form 10-K or Form 10-Q the conclusions of the
certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no significant changes in the Company's
internal controls (as such term is defined in Item 307(b) of Regulation S-K
under the Exchange Act) or, to the Company's knowledge, in other factors
that could significantly affect the Company's internal controls.
(s) CERTAIN FEES. No brokerage or finder's fees or commissions are or
will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The
Purchasers shall have no obligation with respect to any fees or with
respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
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(t) INVESTMENT COMPANY. The Company is not, and is not an Affiliate
of, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(u) REGISTRATION RIGHTS. No Person has any right to cause the Company
to effect the registration under the Securities Act of any securities of
the Company.
(v) LISTING AND MAINTENANCE REQUIREMENTS. The Company has not, in the
12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the
effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is, and has no
reason to believe that it will not in the foreseeable future continue to
be, in compliance with all such listing and maintenance requirements.
(w) APPLICATION OF TAKEOVER PROTECTIONS. The Company and its Board of
Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company's Certificate of Incorporation
(or similar charter documents) or the laws of its state of incorporation
that is or could become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including without limitation the
Company's issuance of the Shares and the Purchasers' ownership of the
Shares.
(x) DISCLOSURE. The Company confirms that, except as provided for
herein, neither the Company nor any other Person acting on its behalf has
provided any of the Purchasers or their agents or counsel with any
information that constitutes or might constitute material, non-public
information. The Company understands and confirms that the Purchasers will
rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. This Agreement and any Exhibit
attached hereto provided to the Purchasers regarding the Company, its
business and the transactions contemplated hereby, including the Disclosure
Schedules to this Agreement, furnished by or on behalf of the Company are
true and correct and do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) ORGANIZATION; AUTHORITY. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by such
Purchaser of the transactions contemplated by this Agreement has been duly
authorized by all necessary corporate action on the part of such Purchaser.
Each Transaction Document to which it is party has been duly executed by
such Purchaser, and when delivered by such Purchaser in accordance with
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terms hereof, will constitute the valid and legally binding obligation of
such Purchaser, enforceable against it in accordance with its terms.
(b) INVESTMENT INTENT. Such Purchaser is acquiring the Shares as
principal for its own account for investment purposes only and not with a
view to or for distributing or reselling such Shares or any part thereof,
has no present intention of distributing any of such Shares and has no
arrangement or understanding with any other persons regarding the
distribution of such Shares (this representation and warranty not limiting
such Purchaser's right to sell the Shares pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state
securities laws). Such Purchaser is acquiring the Shares hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement
or understanding, directly or indirectly, with any Person to distribute any
of the Shares.
(c) EXPERIENCE OF SUCH PURCHASER. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the
Shares, and has so evaluated the merits and risks of such investment. Such
Purchaser is able to bear the economic risk of an investment in the Shares
and, at the present time, is able to afford a complete loss of such
investment.
(d) CERTAIN FEES. No brokerage or finder's fees or commissions are or
will be payable by such Purchaser to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The
Company shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
(e) ACQUIRING PERSON. Such Purchaser, after giving effect to the
transactions contemplated hereby, will not, either individually or with a
group (as defined in Section 13(d)(3) of the Exchange Act), be the
beneficial owner of 20% or more of the Company's outstanding Common Stock.
For purposes of this Section 3.2(e), beneficial ownership shall be
determined pursuant to a Rule 13d-3 under the Exchange Act.
The Company acknowledges and agrees that each Purchaser does not make or
has not made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 TRANSFER RESTRICTIONS. The Shares may only be disposed of in
compliance with state and federal securities laws. Certificates evidencing
the Shares shall not contain any legend with respect to any restriction on
the trading thereof.
4.2 SECURITIES LAWS DISCLOSURE; PUBLICITY. The Company shall, within
3 Trading Days of the Closing Date, issue a press release or file a Current
Report on Form 8-K, in each case reasonably acceptable to each Purchaser
disclosing the transactions contemplated hereby and make such other filings
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and notices in the manner and time required by the Commission. The Company
and each Purchaser shall consult with each other in issuing any press
releases with respect to the transactions contemplated hereby, and neither
the Company nor any Purchaser shall issue any such press release or
otherwise make any such public statement without the prior consent of the
Company, with respect to any press release of any Purchaser, or without the
prior consent of each Purchaser, with respect to any press release of the
Company, which consent shall not unreasonably be withheld, except if such
disclosure is required by relevant securities or other laws, in which case
the disclosing party shall promptly provide the other party with prior
notice of such public statement or communication.
4.3 SHAREHOLDERS RIGHTS PLAN. The Purchaser is not an "Acquiring
Person" under any shareholders rights plan or similar plan or arrangement
in effect.
4.4 INDEMNIFICATION OF PURCHASERS. The Company will indemnify and hold
the Purchasers and their directors, officers, shareholders, partners,
employees and agents (each, a "PURCHASER PARTY") harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and
expenses, including all judgments, amounts paid in settlements, court costs
and reasonable attorneys' fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to any
misrepresentation, breach or inaccuracy, or any allegation by a third party
that, if true, would constitute a breach or inaccuracy, of any of the
representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents. The Company will
reimburse such Purchaser for its reasonable legal and other expenses
(including the cost of any investigation, preparation and travel in
connection therewith) incurred in connection therewith, as such expenses
are incurred.
4.5 RESERVATION OF COMMON STOCK. As of the date hereof, the Company
has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, a sufficient number of shares of
Common Stock for the purpose of enabling the Company to issue Shares
pursuant to this Agreement.
4.6 LISTING OF COMMON STOCK. The Company hereby agrees to use
commercially reasonable efforts to maintain the listing of the Common Stock
on the Trading Market. The Company further agrees, if the Company applies
to have the Common Stock traded on any other Trading Market, it will
include in such application the Shares, and will take such other action as
is necessary or desirable in the opinion of the Purchasers to cause the
Shares to be listed on such other Trading Market as promptly as possible.
The Company will take all action reasonably necessary to continue the
listing and trading of its Common Stock on a Trading Market and will comply
in all respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the Trading Market.
ARTICLE V.
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. The Transaction Documents, together with the
exhibits and schedules thereto, contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such
matters, which the parties acknowledge have been merged into such
-12-
documents, exhibits and schedules. The Disclosure Schedules are
incorporated by reference herein and are included as part of the
Transaction Documents.
5.3 NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified on the signature pages hereto prior to 6:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified on the signature pages hereto
on a day that is not a Trading Day or later than 6:30 p.m. (New York City
time) on any Trading Day, (c) the Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service,
or (d) upon actual receipt by the party to whom such notice is required to
be given. The address for such notices and communications shall be as set
forth on the signature pages attached hereto.
5.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an
amendment, by the Company and Purchasers holding a majority of the Shares
sold hereunder or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any
subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
5.5 CONSTRUCTION. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against
any party.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each Purchaser.
Any Purchaser may assign any or all of its rights under this Agreement to
any Person to whom such Purchaser assigns or transfers any Shares, provided
such transferee agrees in writing to be bound, with respect to the
transferred Shares, by the provisions hereof that apply to the
"Purchasers".
5.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
5.8 GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of the Transaction Documents shall
be governed by and construed and enforced in accordance with the internal
laws of the State of Delaware, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
-13-
in the state and federal courts sitting in the State of Delaware. Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the State of Delaware for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to the enforcement of the any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such suit, action or proceeding is improper. Each
party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by law. Each party hereto (including
its affiliates, agents, officers, directors and employees) hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. If
either party shall commence an action or proceeding to enforce any
provisions of a Transaction Document, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
5.9 SURVIVAL. The representations, warranties, agreements and
covenants contained herein shall survive the Closing for a period of 1 year
from the Closing Date.
5.10 EXECUTION. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if
such facsimile signature page were an original thereof.
5.11 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Agreement shall not in any way
be affected or impaired thereby and the parties will attempt to agree upon
a valid and enforceable provision that is a reasonable substitute therefor,
and upon so agreeing, shall incorporate such substitute provision in this
Agreement.
5.12 REPLACEMENT OF SHARES. If any certificate or instrument
evidencing any Shares is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any
reasonable third-party costs associated with the issuance of such
replacement Shares.
5.13 REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of
the Purchasers and the Company will be entitled to specific performance
-14-
under the Transaction Documents. The parties agree that monetary damages
may not be adequate compensation for any loss incurred by reason of any
breach of obligations described in the foregoing sentence and hereby agrees
to waive in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.14 PAYMENT SET ASIDE. To the extent that the Company makes a payment
or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Company, a trustee, receiver
or any other person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of
action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
5.15 INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser
shall be responsible in any way for the performance of the obligations of
any other Purchaser under any Transaction Document. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Purchasers are in any way acting in
concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Document. Each Purchaser shall be entitled
to independently protect and enforce its rights, including without
limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal
counsel in their review and negotiation of the Transaction Documents.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Share
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
CYTOGEN CORPORATION ADDRESS FOR NOTICE:
------------------
000 Xxxxxxx Xxxx Xxxx
XX 0000
Suite 3100
By: /s/ Xxxxxxx X. Xxxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
-------------------------------------------- Attn: Xxxxxx Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxx Tel: 000-000-0000
Title: President and Chief Executive Officer Fax: 000-000-0000
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: Pharma w/Health
-----------------------------------------------------
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print name: Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print Title: CFO of Investment Advisor
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $450,010
----------------------
Shares Purchased: 40,910
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: Merlin BioMed Long Term Appreciation Fund
-----------------------------------------------------
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print name: Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print Title: CFO of General Partner
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $330,000
----------------------
Shares Purchased: 30,000
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: Merlin BioMed Employees 401K Plan
-----------------------------------------------------
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print name: Xxxxxx Xxxxxxxxx
-----------------------------------------------------
Print Title: Trustee
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $220,000
----------------------
Shares Purchased: 20,000
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: CLSP, L.P.
-----------------------------------------------------
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------------
Print name: Xxxxxxx Xxxxxx
-----------------------------------------------------
Print Title: Sole Member of Casdin Capital LLC, which is the
Managing Member of Xxxxxx Xxxx Partners, LLC,
which is the General Partner of CLSP, L.P.
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $5,129,729
----------------------
Shares Purchased: 466,339
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: CLSP II, L.P.
-----------------------------------------------------
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------------
Print name: Xxxxxxx Xxxxxx
-----------------------------------------------------
Print Title: Sole Member of Casdin Capital LLC, which is the
Managing Member of Xxxxxx Hill Partners, LLC,
which is the General Partner of CLSP II, L.P.
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $4,907,375
----------------------
Shares Purchased: 446,125
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: CLSP SBS-I, L.P.
-----------------------------------------------------
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------------
Print name: Xxxxxxx Xxxxxx
-----------------------------------------------------
Print Title: Sole Member of Casdin Capital LLC, which is the
Managing Member of Xxxxxx Xxxx Partners, LLC,
which is the General Partner of CLSP SBS-I, L.P.
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $1,962,202
----------------------
Shares Purchased: 178,382
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: CLSP SBS-II, L.P.
-----------------------------------------------------
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------------
Print name: Xxxxxxx Xxxxxx
-----------------------------------------------------
Print Title: Sole Member of Casdin Capital LLC, which is the
Managing Member of Xxxxxx Hill Partners, LLC,
which is the General Partner of CLSP SBS-II, L.P.
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $674,806
----------------------
Shares Purchased: 61,346
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: CLSP Overseas, Ltd.
-----------------------------------------------------
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------------
Print name: Xxxxxxx Xxxxxx
-----------------------------------------------------
Print Title: Sole Member of Casdin Capital LLC, which is the
General Partner of Xxxxxx Xxxx Partners, LP,
which is the Investment Manager of CLSP Overseas,
Ltd.
-----------------------------------------------------
Address For Notice: 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
-----------------------------------------------------
Subscription Amount: $3,825,888
----------------------
Shares Purchased: 347,808
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
[PURCHASER SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
Print Entity Name: Baystar Capital II, L.P.
-----------------------------------------------------
By: /s/ Xxxxx Xxxxx
-----------------------------------------------------
Print name: Xxxxx Xxxxx
-----------------------------------------------------
Print Title: Managing Partner
-----------------------------------------------------
Address For Notice: Baystar Capital Management, LLC
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
-----------------------------------------------------
Subscription Amount: $2,999,997
----------------------
Shares Purchased: 272,727
----------------------
SECURITY DELIVERY INSTRUCTIONS (IF DIFFERENT THAN NOTICE ADDRESS)
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