AMENDMENT NO. 1 TO COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1 TO
This Amendment
No. 1 (this
“Amendment”)
to that certain Common Stock Purchase Agreement, dated October 30, 2008
(the “Agreement”),
by and between Dyax Corp., a Delaware corporation (the “Company”),
and Azimuth Opportunity Ltd., an international business company incorporated
under the laws of the British Virgin Islands (the “Investor”),
is entered into as of February 16, 2010 (the “Amendment
Date”). Capitalized terms not otherwise defined herein shall
have the meaning set forth in the Agreement.
Recitals
Whereas, Section 2.2 of the Agreement
provides in part that the applicable Discount Price shall be determined in
accordance with the price and share amount parameters as set forth in the
pricing grid table set forth therein, or such other parameters mutually agreed
upon by the Investor and the Company;
Whereas, Section 7.1 of the Agreement
provides in part that, unless earlier terminated, the Agreement shall terminate
automatically on the earliest of (i) the first day of the month next following
the 18-month anniversary of the Effective Date, (ii) the date that the entire
dollar amount of Shares registered under the Registration Statement have been
issued and sold and (iii) the date the Investor shall have purchased the
Total Commitment of shares of Common Stock (subject in all cases to the Trading
Market Limit);
Whereas, the Agreement remains in
full force and effect;
Whereas,
Section 9.3 of the Agreement provides that the Agreement may be amended by a
written instrument signed by the Company and the Investor; and
Whereas,
the Company and the Investor now desire to amend the Agreement as set forth
herein.
Agreement
Now,
Therefore, in consideration of the
mutual promises, representations, warranties, covenants and conditions set forth
in the Agreement and this Amendment, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment of Section
2.2. Effective as of the Amendment Date, Section 2.2 of the
Agreement shall be amended and restated in its entirety as follows:
Section
2.2. Fixed
Requests. From
time to time during the Investment Period, the Company may in its sole
discretion deliver to the Investor a Fixed Request Notice for a specified Fixed
Amount Requested, and the applicable discount price (the “Discount Price”) shall
be determined, in accordance with the price and share amount parameters as set
forth below or such other parameters mutually agreed upon by the Investor and
the Company, and upon the terms and subject to the conditions of this Agreement,
the Investor shall purchase from the Company the Shares subject to such Fixed
Request Notice; provided, however, that (i) if an ex-dividend date is
established by the Trading Market in respect of the Common Stock on or between
the first Trading Day of the applicable Pricing Period and the applicable
Settlement Date, the Discount Price shall be reduced by the per share dividend
amount and (ii) the Company may not deliver any single Fixed Request Notice for
a Fixed Amount Requested in excess of the lesser of (a) the amount in the
applicable Fixed Amount Requested column below and (b) 2.5% of the Market
Capitalization:
|
Threshold Price
|
Fixed Amount Requested
|
Discount Price
|
|
Equal
to or greater than $10.00
|
Not
to exceed $8,250,000
|
95.950%
of the VWAP
|
|
Equal
to or greater than $9.00 and less than $10.00
|
Not
to exceed $7,500,000
|
95.850%
of the VWAP
|
|
Equal
to or greater than $8.00 and less than $9.00
|
Not
to exceed $6,750,000
|
95.750%
of the VWAP
|
|
Equal
to or greater than $7.00 and less than $8.00
|
Not
to exceed $6,000,000
|
95.375%
of the VWAP
|
|
Equal
to or greater than $6.00 and less than $7.00
|
Not
to exceed $5,250,000
|
95.125%
of the VWAP
|
|
Equal
to or greater than $5.00 and less than $6.00
|
Not
to exceed $4,500,000
|
94.750%
of the VWAP
|
|
Equal
to or greater than $4.00 and less than $5.00
|
Not
to exceed $3,750,000
|
94.500%
of the VWAP
|
|
Equal
to or greater than $3.00 and less than $4.00
|
Not
to exceed $3,000,000
|
94.250%
of the VWAP
|
|
Equal
to or greater than $2.00 and less than $3.00
|
Not
to exceed $2,250,000
|
93.750%
of the VWAP
|
Anything
to the contrary in this Agreement notwithstanding, at no time shall the Investor
be required to purchase more than $8,250,000 worth of Common Stock in respect of
any Pricing Period (not including Common Stock subject to any Optional
Amount). The date on which the Company delivers any Fixed Request
Notice in accordance with this Section 2.2 hereinafter shall be referred to as a
“Fixed Request
Exercise Date”.
2. Amendment of Section
7.1. Effective as of the Amendment Date, Section 7.1 of the
Agreement shall be amended to replace the first sentence thereof with the
following:
“Unless earlier terminated as provided
hereunder, this Agreement shall terminate automatically on the
earliest of (i) January 7, 2011 (the “Investment
Period”), (ii) the date
that the entire dollar amount of Shares registered under the Registration
Statement have been issued and sold and (iii) the date the Investor shall have
purchased the Total Commitment of shares of Common Stock (subject in all cases
to the Trading Market Limit).”
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3. Continuing Effect of
Agreement. Except as expressly set forth in this Amendment,
all other provisions of the Agreement remain in full force and
effect.
4. Governing Law. This
Amendment shall be governed by and construed in accordance with the internal
procedure and substantive laws of the State of New York, without giving effect
to the choice of law provisions of such state.
5. Counterparts. This
Amendment may be executed in counterparts, all of which taken together shall
constitute one and the same original and binding instrument and shall become
effective when all counterparts have been signed by each party and delivered to
the other parties hereto, it being understood that all parties hereto need not
sign the same counterpart.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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In Witness
Whereof, the
parties hereto have caused this Amendment
No. 1 to the Agreement to be executed and delivered as of the Amendment
Date.
| Company: DYAX CORP. | |||
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title: Chief
Financial Officer
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Investor: AZIMUTH
OPPORTUNITY LTD.
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By:
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/s/ Xxxxxxx X. XxXxx | |
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Name:
Xxxxxxx X. XxXxx
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Title:
Corporate Secretary
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