Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of
November 12, 2003, among Keryx Biopharmaceuticals, Inc., 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
and pursuant to Section 4(2) of the Securities Act (as defined below), and Rule
506 promulgated thereunder, the Company desires to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company (the "Offering") in the aggregate, up to 3,600,000 shares of
Common Stock and Warrants (each as defined below) to purchase up to an
additional 720,000 shares of Common Stock (the "Maximum Offering Amount").
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:
"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 New York 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 and Warrants pursuant to Section 2.1.
"Closing Date" means November 12, 2003.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, $0.001 par
value per share, and any securities into which such common stock may
hereafter be reclassified.
"Company Counsel" means Xxxxxx & Bird LLP.
"Effective Date" means the date that the Registration Statement is
first declared effective by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall mean November 13, 2003, or such other date
as may be selected by the Company in its sole discretion without notice to
investors within 30 days thereafter.
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"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(a).
"Per Share Purchase Price" equals $4.25 per share.
"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 a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering
the resale by the Purchasers of the Shares and the Warrant Shares.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company and
each Purchaser, in the form of Exhibit B hereto.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule 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.
"Securities" means the Shares, the Warrants and the Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock issued or issuable to each
Purchaser pursuant to this Agreement.
"Subscription Amount" means, as to each Purchaser and the Closing,
the amounts set forth below such Purchaser's signature block on the
signature page hereto, in United States dollars and in immediately
available funds.
"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 to 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, the Registration
Rights Agreement, the Warrant and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
"Warrants" means the Common Stock Purchase Warrants, in the form of
Exhibit C, issuable to the Purchasers at Closing, which warrants shall be
exercisable immediately and have an exercise price equal to $6.00 per
share and a term of exercise of five (5) years.
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"Warrant Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. 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, and a
number of Warrants equal to twenty percent (20%) of the Shares to be issued to
such Purchaser. Upon satisfaction of the conditions set forth in Section 2.2,
the Closing shall occur at the offices of the Company, or such other location as
the parties shall mutually agree. The Company may continue the Offering, in one
or more Closings, until the earlier of the sale of the Maximum Offering Amount
or until the Expiration Date. Purchasers will be required to deliver executed,
binding Securities Purchase Agreements by the Expiration Date (as defined in the
Term Sheet), the Closing of which will only be subject to the satisfaction of
the Closing Conditions in Section 2.2.
2.2 Closing Conditions.
(a) As a condition to the Purchasers' obligation to close, at the
Closing (unless otherwise specified below) the Company shall have
satisfied each of the conditions set forth below or shall deliver or cause
to be delivered to each Purchaser the items set forth below, as
appropriate:
(i) this Agreement duly executed by the Company;
(ii) within five (5) Business Days of the Closing Date, a
certificate evidencing a number of Shares equal to such Purchaser's
Subscription Amount divided by the Per Share Purchase Price,
registered in the name of such Purchaser;
(iii) within five (5) Business Days of the Closing Date, a
Warrant, registered in the name of such Purchaser, pursuant to which
such Purchaser shall have the right to acquire up to the number of
shares of Common Stock equal to twenty percent (20%) of the Shares
to be issued to such Purchaser at such Closing;
(iv) the Registration Rights Agreement duly executed by the
Company;
(v) a legal opinion of Company Counsel, in the form of
Appendix A attached hereto;
(vi) the representations and warranties made by the Company
herein shall be true and correct in all material respects on the
dates made and on the date of Closing;
(vii) all covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the
Closing shall have been performed or complied with in all material
respects;
(viii) no statute, rule, regulation, order, decree, ruling or
injunction shall have been enacted, entered, promulgated, endorsed
or threatened or is pending by or before any governmental authority
of competent jurisdiction which in any material respect restricts,
prohibits or threatens to restrict or prohibit the consummation of
any of the transactions contemplated by the Transaction Documents;
and
(ix) a minimum, in the aggregate, of 1,800,000 Shares sold to
the Purchasers.
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(b) As a condition to the Company's obligation to close, at the
Closing, each Purchaser shall have satisfied each of the conditions set
forth below or shall deliver or cause to be delivered to the Company the
items set forth below, as appropriate:
(i) this Agreement duly executed by such Purchaser;
(ii) such Purchaser's Subscription Amount as to such Closing
by wire transfer to the account of the Company as provided to the
Purchasers in writing prior to the Closing Date;
(iii) the Registration Rights Agreement duly executed by such
Purchaser;
(iv) the representations and warranties made by the Purchasers
herein shall be true and correct in all material respects on the
dates made and on the date of Closing;
(v) each Purchaser shall have performed, satisfied and
complied in all material respects with all covenants, agreements and
conditions required by the Transaction Documents to be performed,
satisfied or complied with by such Purchaser at or before the
Closing; and
(vi) no statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated,
endorsed or threatened or is pending by or before any governmental
authority of competent jurisdiction which prohibits or threatens to
prohibit the consummation of any of the transactions contemplated by
the Transaction Documents.
(c) As of the Closing Date, there shall have been no Material
Adverse Effect with respect to the Company since the date hereof.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth in
the Company's public filings under the Exchange Act, the Company, including its
subsidiaries for the purposes of this Article 3, hereby makes the following
representations and warranties as of the date hereof and as of the Closing Date
to each Purchaser:
(a) Organization and Qualification. The Company 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 corporate power and authority to own
and use its properties and assets and to carry on its business as
currently conducted. The Company is not in violation of any of the
provisions of its certificate of incorporation, bylaws or other
organizational or charter documents. The Company 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
operations, assets, business or financial condition of the Company, or
(iii) a material adverse effect on 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").
(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the
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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, and (iii) with respect to the indemnification
provisions set forth in the Registration Rights Agreement, as limited by
public policy.
(c) 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 certificate 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 debt or
otherwise) or other understanding to which the Company is a party or by
which any property or asset of the Company 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 is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company 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.
(d) 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 (i) the filing with the Commission of
the Registration Statement, and one or more Forms D with respect to the
Shares as may be required under Regulation D of the Securities Act, the
application(s) to each Trading Market for the listing of the Shares and
Warrant Shares for trading thereon in the time and manner required
thereby, and applicable Blue Sky filings and (ii) such as have already
been obtained or such exemptive filings as are required to be made under
applicable state and federal securities laws.
(e) Capitalization. All of the outstanding shares of Common Stock
are, and all of the Shares and Warrant Shares, when issued, will be, duly
authorized, validly issued, fully paid and nonassessable, and free and
clear of all liens created by the Company, and all such shares were, and
the Shares and any Warrant Shares, will be, issued in material compliance
with all applicable federal and state securities laws, including available
exemptions therefrom, and none of such issuances were, and the issuance of
the Shares and any Warrant Shares will not be, made in violation of any
pre-emptive or other rights. The Company has reserved from its duly
authorized capital stock the maximum number of shares of Common Stock
issuable pursuant to this Agreement and the Warrants. The issuance of the
Shares and Warrant Shares will not trigger any anti-dilution rights of any
existing securities of the Company.
(f) Reports and Financial Statements. The Company has made available
to the Purchasers, prior to the execution of this Agreement, a copy of the
Company's Annual Report on Form 10-K for the year ended December 31, 2002,
the Company's Quarterly Reports on Form 10-Q that have been filed for all
quarters ended since December 31, 2002, the definitive proxy statement for
the Company's 2003 annual meeting of stockholders, and will make available
any Current Reports on
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Form 8-K filed since December 31, 2002 (as such documents have since the
time of their filing been amended or supplemented, and together with all
reports, documents and information filed on or after the date first
written above through the date of Closing with the SEC, including all
information incorporated therein by reference, collectively, the "SEC
Reports"). The SEC Reports (a) complied and will comply as to form in all
material respects with the requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (b)
did not, at the time of their filing, contain any untrue statement of a
material fact or omit 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.
(g) Conformity of Descriptions. The Shares conform, and the Warrant
Shares, when issued, will conform in all material respects to the
descriptions of the Company's Common Stock contained in the Company's SEC
Reports and other filings with the SEC.
(h) Statements True and Correct. No representation, warranty,
statement, certificate, instrument, or other writing furnished or to be
furnished by the Company to Purchaser or its representatives pursuant to
this Agreement or any other document, agreement, or instrument referred to
herein contains or will contain any untrue statement of material fact or
will omit to state a material fact necessary to make the statements
therein not misleading.
(i) Certain Fees. Any brokerage, finder's fees or commissions that
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
will be paid solely by the Company.
(j) Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the
Securities by the Company to the Purchasers as contemplated hereby. The
issuance and sale of the Securities hereunder does not contravene the
rules and regulations of the Trading Market.
(k) 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.
(l) Form S-3 Eligibility. The Company is eligible to register the
resale of its Common Stock by the Purchasers under Form S-3 or other
comparable form promulgated under the Securities Act.
(m) Application of Takeover Protections. Assuming the Purchasers
beneficially own any shares of Common Stock prior to the date hereof, 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
Securities and the Purchasers' ownership of the Securities.
(n) 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 security or solicited any
offers to buy any security, under circumstances that would cause this
offering of the Securities to be integrated with prior offerings by the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the rules
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and regulations of any exchange or automated quotation system on which any
of the securities of the Company are listed or designated.
(o) 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.
(p) Xxxxxxxx-Xxxxx; Internal Accounting Controls. The Company is in
material compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002
which are applicable to it as of the Closing Date. The Company 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, (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-15(e) and
15d-15(e)) 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
during the period in which the Company's most recently filed period report
under the Exchange Act, 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 most recently filed period report under the Exchange
Act (such date, the "Evaluation Date"). The Company presented in its most
recently filed period report under the Exchange Act 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, the Company's knowledge, in other factors
that could significantly affect the Company's internal controls.
(q) Disclosure. The Company confirms that, 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, other than information
relating to the Offering, 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. All disclosure
provided to the Purchasers regarding the Company, its business and the
transactions contemplated hereby, including the Schedules to this
Agreement, furnished by or on behalf of the Company with respect to the
representations and warranties made herein are true and correct with
respect to such representations and warranties 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. The Company
acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transaction contemplated
hereby other than those specifically set forth in Section 3.2 hereof.
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, limited
liability or partnership power and authority to enter into and to
consummate the
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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 or similar
action on the part of such Purchaser. Each Transaction Document to which
it is a party has been duly executed by such Purchaser, and when delivered
by such Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable
against it 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, and
(iii) with respect to the indemnification provisions set forth in the
Registration Rights Agreement, as limited by public policy.
(b) General Solicitation. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement.
(c) No Public Sale or Distribution. Such Purchaser is (i) acquiring
the Shares and (ii) upon exercise of the Warrants will acquire the Warrant
Shares, for its own account and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant
to sales registered or exempted under the Securities Act; provided,
however, that by making the representations herein, such Purchaser does
not agree to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption
under the Securities Act. Such Purchaser is acquiring the Securities
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 Securities.
(d) Accredited Investor Status. Such Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D.
(e) Reliance on Exemptions. Such Purchaser understands that the
Shares and Warrants are being offered and sold to it in reliance on
specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and such Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Purchaser set forth herein and on the signature
page hereto in order to determine the availability of such exemptions and
the eligibility of such Purchaser to acquire the Common Stock and
Warrants.
(f) Information; Confidentiality. Such Purchaser and its advisors,
if any, have been furnished with all publicly available materials relating
to the business, finances and operations of the Company and such other
publicly available materials relating to the offer and sale of the Shares
and Warrants as have been requested by such Purchaser. The Purchaser
acknowledges and understands that the fact that the Company is seeking to
effect the private placement of the Shares and Warrants is itself
material, non-public information, and disclosure of such information or
use of such information by the Purchasers or anyone receiving such
information from the Purchasers in connection with the purchase, sale or
trade of the Company's securities (other than use by the Purchasers in
acquiring the Shares and/or the Warrants), or any hedging, derivative or
similar transactions or activities involving the Company's securities, is
a violation of securities laws. Such Purchaser and its advisors, if any,
have been afforded the opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations
conducted by such Purchaser or its advisors, if any, or its
representatives shall modify, amend or affect such Purchaser's right to
rely on the Company's representations and warranties contained herein.
Such Purchaser understands that its investment in the Shares and Warrants
involves a high degree of
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risk. Such Purchaser has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision with
respect to its acquisition of the Shares and Warrants.
(g) No Governmental Review. Such Purchaser understands that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Shares and Warrants or the fairness or suitability of
the investment in the Shares and Warrants nor have such authorities passed
upon or endorsed the merits of the offering of the Shares and Warrants.
(h) Experience of Such Purchaser. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters, including investing in
biotechnology companies, so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares and Warrants, 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 Warrants and,
at the present time, is able to afford a complete loss of such investment.
(i) Sales; Short Selling. From and after the date that the Purchaser
receives any information about the existence of the Offering, and through
the Closing Date, the Purchaser has not and shall not, directly or
indirectly, sell shares of the Common Stock in the open Trading Market or
elsewhere, and has not and shall not directly or indirectly, through
related parties, affiliates or otherwise sell "short" or "short against
the box" (as those terms are generally understood) any equity security of
the Company.
(j) Information Regarding Purchaser. Purchaser has provided the
Company with true, complete, and correct information regarding all
applicable items set forth in the on the signature page to this Agreement.
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.
(a) The Securities may only be disposed of in compliance with state
and federal securities laws. In connection with any transfer of Securities
other than (i) pursuant to an effective registration statement, (ii) to
the Company, or (iii) to an Affiliate of a Purchaser, the Company may
require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred
Securities under the Securities Act. As a condition of transfer, any such
transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of a Purchaser under this Agreement
and the Registration Rights Agreement.
(b) The Purchasers agree to the imprinting of a legend on any of the
Securities in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
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THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
(c) Following the Closing Date, upon request from any of the
Purchasers, subject to applicable securities laws and approval of Company
Counsel, which will not be unreasonably withheld, the Company will remove
any of the restrictive legends (including the legend set forth in Section
4.1(b)).
4.2 Furnishing of Information. During the Effectiveness Period (as such
term is defined in the Registration Rights Agreement), the Company covenants to
use its commercially reasonable efforts to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Exchange Act. During the Effectiveness Period, the Company further covenants to
use its commercially reasonable efforts to take such further action as any
Purchaser may reasonably request, all to the extent required from time to time
to enable such Person to sell such Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144.
4.3 Integration. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market.
4.4 Securities Laws Disclosure; Publicity. The Company shall, by 9:30
a.m., New York City time, on the Business Day following the Closing Date, issue
a press release to be disseminated in the public domain describing the terms of
the transactions contemplated by the Transaction Documents. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser, or
include the name of any Purchaser in any filing with the Commission or any
regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (i) as required by federal securities law or the Securities
and Exchange Commission in connection with the registration statement
contemplated by the Registration Rights Agreement and (ii) to the extent such
disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure
permitted under subclause (i) or (ii).
4.5 Shareholders Rights Plan. No claim will be made or enforced by the
Company or any other Person that any Purchaser is an "Acquiring Person" under
any shareholders rights plan or similar plan or arrangement in effect or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, in each case solely by
virtue of receiving Securities under the Transaction Documents or under any
other agreement between the Company and the Purchasers.
4.6 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 and Warrant Shares pursuant to the Warrants.
4.7 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, and as soon as reasonably practicable
10
following the Closing to list the applicable Shares and Warrant Shares 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 the Warrant Shares, and will take such other action
as is necessary or desirable in the opinion of the Purchasers to cause the
Shares and Warrant 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.
4.8 Subsequent Financings Prior to Effective Date. From the date hereof
until after the Effective Date, other than as contemplated by this Agreement,
neither the Company nor any Subsidiary shall issue or sell any Common Stock or
Common Stock Equivalents, excluding the issuance of securities issued upon the
exercise of currently outstanding options and warrants.
4.9 Non-Public Information. The Company covenants and agrees that neither
it nor any other Person acting on its behalf will provide any Purchaser or its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Purchaser shall have
executed a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser shall be
relying on the foregoing representations in effecting transactions in securities
of the Company.
ARTICLE V.
MISCELLANEOUS
5.1 Fees and Expenses. Except as set forth in Section 3.1(i), each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the sale of the Securities.
5.2 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 documents, exhibits and schedules.
5.4 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 attached 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 on the signature pages attached 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.
5.5 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 each Purchaser 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.
11
5.6 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.
5.7 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, provided such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the "Purchasers."
5.8 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, except as otherwise set forth in Section 4.1.
5.9 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
New York, 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 in the state or federal courts sitting in the
City of New York. Each party hereto hereby irrevocably submits to the
jurisdiction of the state and federal courts sitting in the City of New York,
New York, exclusive of all other jurisdictions, 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 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. 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.
5.10 Survival. The representations, warranties, agreements and covenants
contained herein shall survive the Closing and delivery of the Shares.
5.11 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.
5.12 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.
5.13 Replacement of Securities. If any certificate or instrument
evidencing any Securities 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
12
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 Securities.
5.14 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)
13
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
KERYX BIOPHARMACEUTICALS, INC. Address for Notice:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
With copy to (which shall not constitute notice):
Xxxxxx & Bird LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. XxXxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(Signature Page Continues)
14
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Atlas Fund, LLC
/s/ Xxxxxx X. X'Xxxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Chief Operating Officer
Date: November 14, 2003
600,000 $4.25 $2,550,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Xxxxxx Xxxxx & Company, LLC
/s/ Xxxxxx Xxxxx, Jr.
------------------------------------------
Name: Xxxxxx Xxxxx, Jr.
Title: Managing Member
Date: November 17, 2003
188,235 $4.25 $800,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Alpha Capital A.G.
/s/ Vaduz Lichastein
------------------------------------------
Name: Vaduz Lichastein
Title:
Date: November 17, 2003
70,588 $4.25 $300,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Magellan International, Ltd
/s/ Xxxxxxx X.X. XxxxxXxxxxx
------------------------------------------
Name: Xxxxxxx X.X. XxxxxXxxxxx
Title: Director
Date: November 17, 2003
47,058 $4.25 $200,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Biomedical Value Fund, L.P.
/s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Date: November 17, 2003
235,294 $4.25 $1,000,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Biotechnology Development Fund IV, L.P.
/s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: General Partner
Date: November 14, 2003
235,295 $4.25 $1,000,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Bristol Investment Fund, Ltd.
/s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
Date: November 17, 2003
117,647 $4.25 $500,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Cranshire Capital, L.P.
/s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: General Partner
Date: November 17, 2003
241,177 $4.25 $1,025,002.25
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Gryphon Master Fund, LP
/s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Agent
Date: November 17, 2003
117,647 $4.25 $499,999.75
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: MPM BioEquities Master Fund, LP
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
Date: November 17, 2003
465,463 $4.25 $1,978,642.75
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: MPM BioEquities Master Fund GmbH & Co. KG
/s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
Date: November 17, 2003
5,025 $4.25 $21,356.25
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Omicron Master Trust
/s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
Date: November 17, 2003
200,000 $4.25 $850,000.00
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: SF Capital Partners Ltd.
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
Date: November 17, 2003
300,000 $4.25 $1,275,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: S.A.C. Healthco Fund, LLC
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: General Counsel
Date: November 17, 2003
470,588 $4.25 $1,999,999
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Smithfield Fiduciary, LLC
/s/ Xxxx X. Chill
-----------------------------------------
Name: Xxxx X. Chill
Title: Authorized Signatory
Date: November 17, 2003
117,648 $4.25 $500,004.00
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
By: Spectra Capital Management
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sole Member
Date: November 17, 2003
117,647 $4.25 $500,000
---------------------- --------------------- -------------------
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the
Purchaser:
PURCHASER NAME AND ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-________
EMAIL: ________________________
TAX ID #:______________________
2. If different from the information provided in Item 1 above,
please provide the exact name that the Purchaser's Shares are to be registered
in (this is the name that will appear on the stock certificate(s)) and/or to
whom the Purchaser's Warrants will be issued. The Purchaser may use a nominee
name if appropriate:
REGISTERED HOLDER OF THE SHARES AND WARRANTS NAME AND
ADDRESS:
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
FACSIMILE: ( ) ______-________
15
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE
COMPANY PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF
COMMON STOCK PURSUANT THERETO).
16
