SECURITIES PURCHASE AGREEMENT
among
MACROCHEM CORPORATION
and
THE INVESTORS SIGNATORY HERETO
Dated as of July 12, 2001
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of July 12,
2001, among MacroChem Corporation, a Delaware corporation (the "COMPANY"), and
the investors signatory hereto (each such investor is a "PURCHASER" and all such
investors are, collectively, the "PURCHASERS").
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), 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, shares of the Company's common stock, $.01
par value per share (the "COMMON STOCK"), and certain other securities of the
Company 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 the Purchasers agree
as follows:
ARTICLE I
PURCHASE AND SALE
1.1 (a) CLOSING.
(i) Subject to the terms and conditions set forth in this Agreement,
the Company shall issue and sell to the Purchasers and the Purchasers shall,
severally and not jointly, purchase shares of Common Stock and warrants to
purchase shares of Common Stock for an aggregate purchase price of up to
$10,147,984.56. The closing (the "CLOSING") of the purchase and sale of the
securities hereunder shall take place at the offices of Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx & Xxxxxx LLP ("XXXXXXXX XXXXXXXXX"), 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, on the execution date of this Agreement. The date
of the Closing is hereinafter referred to as the "CLOSING DATE."
(ii) THE CLOSING DATE. On the Closing Date, the parties shall deliver
or shall cause to be delivered the following: (A) the Company shall deliver to
each Purchaser: (1) an original stock certificate representing a number of
shares of Common Stock by determined by dividing the aggregate purchase price
for the shares of Common Stock indicated below such Purchaser's name on the
signature page of this Agreement by the Purchase Price Per Share (as defined
herein), registered in the name of such Purchaser (collectively, the "Shares"),
(2) a Common Stock purchase warrant, in the form of EXHIBIT C, registered in the
name of such Purchaser, pursuant to which such Purchaser shall have the right to
acquire a number of shares of Common Stock equal to 20% of the Shares purchased
by it hereunder upon the terms set forth therein (collectively, the "Warrants"),
(3) an executed Registration Rights Agreement, dated the date hereof, among the
Company and the Purchasers, in the form of EXHIBIT A (the "REGISTRATION RIGHTS
AGREEMENT"), (4) Transfer Agent Instructions, in the form of EXHIBIT D, executed
by the Company and delivered to and acknowledged in writing by the Company's
transfer agent (the "TRANSFER AGENT INSTRUCTIONS"), and (5) the legal opinion of
Ropes & Xxxx, outside counsel to the Company, in the form of EXHIBIT E; and (B)
each Purchaser shall deliver: (1) the purchase price for the Shares indicated
below such Purchaser's name on the signature page to this Agreement, in United
States dollars in immediately available funds by wire transfer to an account
designated in writing by the Company for such purpose, and (2) an executed
Registration Rights Agreement.
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1.2 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings set forth in this Section 1.2:
(a) "BUSINESS DAY" shall mean any day except Saturday, Sunday and any day
which shall be a federal legal holiday in the United States or a day on which
banking institutions in the State of New York or the Commonwealth of
Massachusetts are authorized or required by law or other governmental action to
close.
(b) "NASDAQ" means the Nasdaq National Market.
(c) "PER SHARE MARKET VALUE" means on any particular date (a) the closing
price per share of Common Stock on such date on the NASDAQ or on such Subsequent
Market on which the shares of Common Stock are then listed or quoted, as
reported by Bloomberg Information Services, Inc. (or any successor entity
succeeding to its function of reporting prices), or if there is no such price on
such date, then the closing price on the NASDAQ or on such Subsequent Market on
the date nearest preceding such date, as reported by Bloomberg Information
Services, Inc. (or any successor entity succeeding to its function of reporting
prices), or (b) if the shares of Common Stock are not then listed or quoted on
the NASDAQ or a Subsequent Market, the closing price for a share of Common Stock
in the over-the-counter market, as reported by the National Quotation Bureau
Incorporated or similar organization or agency succeeding to its functions of
reporting prices) at the close of business on such date, or (c) if the shares of
Common Stock are not then reported by the National Quotation Bureau Incorporated
(or similar organization or agency succeeding to its functions of reporting
prices), then the average of the "Pink Sheet" quotes for the relevant conversion
period, as determined in good faith by the Holder, or (d) if the shares of
Common Stock are not then publicly traded the fair market value of a share of
Common Stock as determined by an Appraiser selected in good faith by the
Purchasers.
(d) "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.
(e) "PURCHASE PRICE PER SHARE" means $6.48.
(f) "SUBSEQUENT MARKET" shall mean any of the New York Stock Exchange,
American Stock Exchange, or Nasdaq SmallCap Market.
(g) "TRADING DAY" means (i) a day on which the Common Stock is traded on
the NASDAQ or on the Subsequent Market on which the Common Stock is then listed
or quoted, as the case may be, or (ii) if the Common Stock is not listed on the
NASDAQ or a Subsequent Market, a day on which the Common Stock is traded in 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.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby makes
the following representations and warranties to the Purchasers:
(a) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, 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 has no subsidiaries. The Company is duly qualified to do 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, could not, individually or in the aggregate,
reasonably be expected to (x) adversely affect the legality, validity or
enforceability of the Securities (as defined below), this Agreement, the
Registration Rights Agreement, the Transfer Agent Instructions or the Warrants
(collectively, the "TRANSACTION DOCUMENTS"), (y) have or result in a material
adverse effect on the results of operations, assets or condition (financial or
otherwise) of the Company, or (z) adversely impair the Company's ability to
perform fully on a timely basis its obligations under any of the Transaction
Documents (any of (x), (y) or (z), 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 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. Each of
the Transaction Documents has 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 to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and except to the extent that rights to
indemnification and contribution contained in this Agreement may be limited by
federal or state securities laws on public policy relating thereto. The Company
is not in violation of any of the provisions of its certificate or articles of
incorporation, by-laws or other organizational or charter documents.
(c) CAPITALIZATION. The number of authorized, issued and outstanding shares
of capital stock of the Company, as of June 30, 2001, is set forth in SCHEDULE
2.1(C). Since June 30, 2001, the Company has neither engaged in any material
issuance of its shares of capital stock nor issued any shares of capital stock
other than in the ordinary course of its business. No shares of Common Stock are
entitled to preemptive or similar rights, nor is any holder of the securities of
the Company entitled to preemptive or similar rights arising out of any
agreement or understanding with the Company by virtue of any of the Transaction
Documents. Except as a result of the purchase and sale of the Shares and the
Warrants and except as disclosed in SCHEDULE 2.1(C), as of June 30, 2001, there
were 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,
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commitments, understandings, or arrangements by which the Company is or may
become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. Since June 30, 2001,
the Company has neither engaged in any material issuance of any securities
described in the immediately preceding sentence nor issued any such securities
other than in the ordinary course of its business. The issue and sale of the
Securities (as defined below), 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 or conversion or reset price under such securities.
(d) ISSUANCE OF THE SECURITIES. The Shares and the Underlying Shares are
duly authorized and, when issued and paid for in accordance with the terms
hereof and the Warrants, shall have been duly and validly issued, fully paid and
nonassessable, free and clear of all liens, encumbrances and rights of first
refusal of any kind (collectively, "LIENS"). The Company has reserved a number
of duly authorized shares of Common Stock for issuance hereunder and upon
exercise of the Warrants that is not less than the sum of: (i) the Shares to be
issued hereunder and (ii) the number of shares of Common Stock issuable upon
exercise in full of the Warrants (the number of shares of Common Stock
contemplated in (i) and (ii), the "INITIAL MINIMUM"). The shares of Common Stock
issuable upon exercise of the Warrants are referred to herein as the "UNDERLYING
SHARES." The Shares, the Warrants and the Underlying Shares are collectively
referred to herein as, the "SECURITIES."
(e) 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 or articles of incorporation,
bylaws or other charter documents (each as amended through the date hereof), or
(ii) subject to obtaining the Required Approvals (as defined below), conflict
with, or constitute a default (or an event which 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), as could not, individually or in the aggregate, reasonably be expected to
have or result in a Material Adverse Effect. The business of the Company is not
being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, could not reasonably be expected to have or result in a Material
Adverse Effect.
(f) 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 filings required pursuant to Section 3.11, (ii) the filing with the
Securities and Exchange Commission (the "COMMISSION") of a registration
statement meeting the requirements set forth in the Registration Rights
Agreement and covering the resale of the Shares and Underlying Shares by the
Purchasers (the "UNDERLYING SHARES REGISTRATION STATEMENT"), (iii) the
application(s) to the NASDAQ for the listing of the Underlying Shares for
trading on the NASDAQ (and with any other national securities exchange or market
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on which the Common Stock is then listed) in the time and manner required
thereby; (iv) applicable Blue Sky filings, if any, and (v) in all other cases
where the failure to obtain such consent, waiver, authorization or order, or to
give such notice or make such filing or registration could not reasonably be
expected to have or result in, individually or in the aggregate, a Material
Adverse Effect (the items described in clauses (i)-(v) are collectively, the
"REQUIRED APPROVALS").
(g) LITIGATION; PROCEEDINGS. 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 or any of its 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 Securities or (ii)
could individually or in the aggregate, reasonably be expected to have or result
in a Material Adverse Effect.
(h) NO DEFAULT OR VIOLATION. The Company is not (i) in default under or in
violation of (and no event has occurred which has not been waived which, with
notice or lapse of time or both, would result in a default by the Company), nor
has the Company 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, (ii) in violation of any order of any court, arbitrator or
governmental body, or (iii) in violation of any statute, rule or regulation of
any governmental authority, in each case of clauses (i), (ii) or (iii) above,
except as could not individually or in the aggregate, reasonably be expected to
have or result in a Material Adverse Effect
(i) PRIVATE OFFERING. Assuming the accuracy of the representations and
warranties of the Purchasers set forth in Sections 2.2(b)-(g), the offer,
issuance and sale of the Securities to the Purchasers as contemplated hereby are
exempt from the registration requirements of the Securities Act. Neither the
Company nor, to the knowledge of the Company, any Person acting on its behalf
has taken or is contemplating taking any action which could subject the
offering, issuance or sale of the Securities to the registration requirements of
the Securities Act including soliciting any offer to buy or sell the Securities
by means of any form of general solicitation or advertising.
(j) SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed all reports
required to be filed by it under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), including, without limitation, all filings required
pursuant to Sections 13(a) and 15(d) thereof, for the two years preceding the
date hereof (or such shorter period as the Company was required by law to file
such material) (the foregoing materials being collectively referred to herein as
the "SEC DOCUMENTS" and, together with the 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 Documents prior to the expiration
of any such extension. As of their respective dates, the SEC Documents 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 Documents, 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. All material
agreements to which the Company is a party or to which the property or assets of
the Company are subject have been filed as exhibits to the SEC Documents as
required under the Exchange Act. The financial statements of the Company
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included in the SEC Documents comply 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 fairly present in all material respects the financial position of the
Company 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, immaterial, year-end audit adjustments. Since December 31, 2000,
except as set forth in SCHEDULE 2.1(J) hereto or as specifically disclosed in
the SEC Documents, (a) there has been no event, occurrence or development that
has or that could reasonably be expected to result in a Material Adverse Effect,
(b) the Company has not incurred any liabilities (contingent or otherwise) other
than (x) liabilities incurred in the ordinary course of business consistent with
past practice and (y) 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, (c) the Company has not altered its method of
accounting or the identity of its auditors, (d) the Company has not declared or
made any payment or distribution of cash or other property to its stockholders
or officers or directors (other than in compliance with existing Company stock
option plans) with respect to its capital stock, or purchased, redeemed (or made
any agreements to purchase or redeem) any shares of its capital stock and (e)
except for the granting of options or warrants to employees, officers, bona fide
consultants and directors of the Company or under any stock option plan
heretofore adopted by the Company, the Company has not issued or committed to
issue shares of Common Stock or securities that are convertible or exchangeable
into, or give holders thereof the right to receive, shares of Common Stock.
(k) INVESTMENT COMPANY. The Company is not, and is not an Affiliate (as
defined in Rule 405 under the Securities Act) of, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(l) CERTAIN FEES. Except for certain fees payable by the Company to Leerink
Xxxxx and Company, no fees or commissions 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. The Company shall indemnify and
hold harmless the Purchasers, their employees, officers, directors, agents, and
partners, and their respective Affiliates, from and against all claims, losses,
damages, costs (including the costs of preparation and attorney's fees) and
expenses suffered in respect of any such claimed or existing fees, as such fees
and expenses are incurred.
(m) SOLICITATION MATERIALS. Neither the Company nor any Person acting on
the Company's behalf has solicited any offer to buy or sell the Securities by
means of any form of general solicitation or advertising.
(n) FORM S-3 ELIGIBILITY. The Company is eligible to register
its Common Stock, the Shares and the Underlying Shares for resale under Form S-3
promulgated under the Securities Act.
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(o) LISTING AND MAINTENANCE REQUIREMENTS. Except as set forth in the SEC
Documents, the Company has not, in the two years preceding the date hereof
received notice (written or oral) from the NASDAQ, any stock exchange, market or
trading facility on which the Common Stock is or has been listed (or on which it
has been quoted) to the effect that the Company is not in compliance with the
listing or maintenance requirements of such exchange, market or trading
facility. 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) PATENTS AND TRADEMARKS. The Company has, or has rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, copyrights, licenses and rights which are necessary or material for
use in connection with its businesses as described in the SEC Documents and
which the failure to so have would have a Material Adverse Effect (collectively,
the "INTELLECTUAL PROPERTY Rights"). Since December 31, 1999, the Company has
not received a written notice that the Intellectual Property Rights used by the
Company violates or infringes upon the rights of any Person. To the knowledge of
the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property
Rights.
(q) REGISTRATION RIGHTS; RIGHTS OF PARTICIPATION. Except as set forth on
Schedule 6(b) to the Registration Rights Agreement, the Company has not granted
or agreed to grant to any Person any rights (including "piggy-back" registration
rights) to have any securities of the Company registered with the Commission or
any other governmental authority which have not been satisfied. Except as set
forth on Schedule 6(b) to the Registration Rights Agreement, 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.
(r) REGULATORY PERMITS. The Company possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its businesses as described in the
SEC Documents, except where the failure to possess such permits could not,
individually or in the aggregate, reasonably be expected to have or result in a
Material Adverse Effect ("MATERIAL PERMITS"), and the Company has not received
any notice of proceedings relating to the revocation or modification of any
Material Permit.
(s) TITLE. Except as set forth in Schedule 2.1(s) hereto, the Company has
good and marketable title in fee simple to all real property owned by it which
is material to the business of the Company and good and marketable title in all
personal property owned by it which is material to the business of the Company,
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 interfere with the use made and
proposed to be made of such property by the Company. Any real property and
facilities held under lease by the Company are held by it under valid,
subsisting and enforceable leases with which the Company is in compliance and do
not prohibit the use made and proposed to be made of such property and buildings
by the Company.
(t) LABOR RELATIONS. No material labor problem exists or, to the knowledge
of the Company, is imminent with respect to any of the employees of the Company.
(u) SOLVENCY. Based on the financial condition of the Company as of the
Closing Date, (i) the Company's fair saleable value of its assets exceeds the
amount that will be required to be paid on or in respect of the Company's
existing debts and other liabilities (including known contingent liabilities) as
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they mature; (ii) the Company's assets do not constitute unreasonably small
capital to carry on its business for the current fiscal year as now conducted,
including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, and project capital
requirements and capital availability thereof; and (iii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid.
(v) DISCLOSURE. The Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Purchasers or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Company understands and confirms that the Purchasers shall be
relying on the foregoing representations 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 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.
(w) ABSENCE OF CERTAIN PROCEEDINGS. Except as described in the SEC
Documents: (i) there is no Action pending or, to the knowledge of the Company,
threatened against the Company, in any such case wherein an unfavorable
decision, ruling or finding could reasonably be expected to have or result in a
Material Adverse Effect; (ii) neither the Company, nor, to the knowledge of the
Company, any director or officer thereof, is or has been the subject of any
Action involving: (A) a claim of violation of or liability under federal or
state securities laws or (B) a claim of breach of fiduciary duty; (iii) the
Company does not have pending before the Commission any request for confidential
treatment of information and the Company has no knowledge that any such request
will be made prior to the Effectiveness Date (as defined in the Registration
Rights Agreement); and (iv) 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, to the knowledge of the Company, any
current or former director or officer of the Company.
2.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser hereby
for itself and for no other Purchaser, represents and warrants 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 the requisite 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 purchase by
such Purchaser of the Securities hereunder has been duly authorized by all
necessary action on the part of such Purchaser. Each of this Agreement and the
Registration Rights Agreement 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 to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except to the extent that
rights to indemnification and contribution contained in this Agreement may be
limited by federal or state securities laws on public policy relating thereto.
8
(b) INVESTMENT INTENT. Such Purchaser is acquiring the Securities as
principal for its own account for investment purposes only and not with a view
to or for distributing or reselling such Securities or any part thereof, without
prejudice, however, to such Purchaser's right, subject to the provisions of this
Agreement, the Registration Rights Agreement and the Warrants, at all times to
sell or otherwise dispose of all or any part of such Securities pursuant to an
effective registration statement under the Securities Act or under an exemption
from such registration and in compliance with applicable federal and state
securities laws. Nothing contained herein shall be deemed a representation or
warranty by such Purchaser to hold the Securities for any period of time. 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 the Securities.
(c) PURCHASER STATUS. At the time such Purchaser was offered the
Securities, it was, at the date hereof it is and at each exercise date under its
respective Warrant it will be, an "accredited investor" as defined in Rule
501(a) under the Securities Act.
(d) 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 Securities, and has so evaluated the
merits and risks of such investment.
(e) ABILITY OF SUCH PURCHASER TO BEAR RISK OF INVESTMENT. Such Purchaser is
able to bear the economic risk of an investment in the Securities and, at the
present time, is able to afford a complete loss of such investment.
(f) ACCESS TO INFORMATION. Such Purchaser acknowledges that it has reviewed
the Disclosure Materials and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and the Company's
financial condition, results of operations, business, properties, management and
prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information which the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the investment and to verify the
accuracy and completeness of the information contained in the Disclosure
Materials. Neither such inquiries nor any other investigation conducted by or on
behalf of such Purchaser or its representatives or counsel shall modify, amend
or affect such Purchaser's right to rely on the truth, accuracy and completeness
of the Disclosure Materials and the Company's representations and warranties
contained in the Transaction Documents.
(g) GENERAL SOLICITATION. Such Purchaser is not purchasing the Securities
as a result of or subsequent to any advertisement, article, notice or other
communication regarding such 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.
(h) RELIANCE. Such Purchaser understands and acknowledges that (i) the
Securities are being offered and sold to it without registration under the
Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of such exemption,
depends in part on, and the Company will rely upon the accuracy and truthfulness
9
of, the foregoing representations and warranties and such Purchaser hereby
consents to such reliance.
The Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 2.2.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 TRANSFER RESTRICTIONS.
(a) Securities may only be disposed of pursuant to an effective
registration statement under the Securities Act, to the Company or pursuant to
an available exemption from or in a transaction not subject to the registration
requirements of the Securities Act, and in compliance with any applicable
federal and state securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or to the Company,
except as otherwise set forth herein, 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.
Notwithstanding the foregoing, the Company, without requiring a legal opinion as
described in the immediately preceding sentence, hereby consents to and agrees
to register on the books of the Company and with any transfer agent for the
securities of the Company any transfer of Securities by a Purchaser to an
Affiliate of such Purchaser or to one or more funds or managed accounts under
common management with such Purchaser, and any transfer among any such
Affiliates or one or more funds or managed accounts, provided that the
transferee certifies to the Company that it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act and that it is acquiring the
Securities solely for investment purposes (subject to the qualifications
hereof). 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 and, if such transfer is of all or a portion
of the Warrants held by such Purchaser, as a holder of the Warrants.
(b) The Shares, the Warrants and any Underlying Shares issued while there
is not an effective Underlying Shares Registration Statement shall be issued
with the following legend:
[NEITHER] THESE SECURITIES [NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE EXERCISABLE] HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER 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.
10
(c) At any time after the date the Underlying Shares Registration Statement
is declared effective by the Commission (such date, the "EFFECTIVE DATE"), the
Company shall, no later than the third (3rd) Trading Day following the delivery
by a Purchaser of a certificate or certificates representing Shares, deliver to
such Purchaser one or more stock certificates evidencing the Shares and any
Underlying Shares issued upon exercise of the Warrants, free of the legend set
forth above or any other legend. Neither the Shares nor the Underlying Shares
shall contain the legend set forth above nor any other legend when there is an
effective Underlying Shares Registration Statement or when such legend is not
required under the Securities Act (including judicial interpretations and
pronouncements issued by the Staff of the Commission). The Company shall cause
its counsel to issue the legal opinion included in the Transfer Agent
Instructions to the Company's transfer agent on each date that the Underlying
Shares Registration Statement is declared effective by the Commission. The
Company may not make any notation on its records or give instructions to any
transfer agent of the Company which enlarge the restrictions of transfer set
forth in this Section.
3.2 FURNISHING OF INFORMATION. As long as the Purchasers own Securities,
the Company covenants 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 Section 13(a) or 15(d) of the
Exchange Act. As long as the Purchasers own Securities, if the Company is not
required to file reports pursuant to such sections, it will prepare and furnish
to the Purchasers and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act such information as is required for the
Purchasers to sell the Securities under Rule 144 promulgated under the
Securities Act. The Company further covenants that it will take such further
action as any holder of Securities may reasonably request, all to the extent
required from time to time to enable such Person to sell Underlying Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act, including
causing its attorneys to render and deliver any legal opinion required under
such rule or by the transfer agent of the Common Stock or clearing broker for
the Purchaser in order to permit a Purchaser to receive Underlying Shares free
of all restrictive legends and to subsequently sell Underlying Shares under Rule
144 upon receipt of a notice of an intention to sell or other form of notice
having a similar effect. Upon the request of any such Person, the Company shall
deliver to such Person a written certification of a duly authorized officer as
to whether it has complied with such requirements.
3.3 INTEGRATION. The Company shall not, and shall use its best efforts to
ensure that, no Affiliate of the Company shall, 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 the purposes of the
rules and regulations of NASDAQ.
3.4 RESERVATION OF UNDERLYING SHARES. The Company shall maintain a reserve
of shares of Common Stock for issuance upon exercise in full of the Warrants in
accordance with this Agreement and the Warrants.
3.5 EXERCISE PROCEDURES. The Transfer Agent Instructions and Form of
Election to Purchase under the Warrants set forth the totality of the procedures
with respect to the exercise of the Warrants, including the form of legal
opinion, if necessary, that shall be rendered to the Company's transfer agent
and such other information and instructions as may be reasonably necessary to
enable the Purchasers to exercise their Warrants.
11
3.6 EXERCISE OBLIGATIONS. The Company shall honor exercises of the Warrants
and shall deliver Underlying Shares in accordance with the terms, conditions and
time periods set forth in the Warrants.
3.7 USE OF PROCEEDS. Except as set forth in SCHEDULE 3.7, the Company shall
use the net proceeds from the sale of the Securities hereunder for working
capital purposes and not for the satisfaction of any portion of the Company's
debt (other than payment of trade payables in the ordinary course of the
Company's business and prior practices), to redeem any Company equity or
equity-equivalent securities or to settle any outstanding litigation.
3.8 LIMITATIONS OF SUBSEQUENT FINANCINGS. From the date of this Agreement
through the 30th Trading Day following the Effective Date, the Company will not,
without the consent of the Purchasers, offer, sell, grant any option to
purchase, or otherwise dispose of (or announce any offer, sale, grant or any
option to purchase or other disposition) any of its equity or equity equivalent
securities or securities of any of its Affiliates that are exchangeable or
convertible (directly or indirectly) for shares of Common Stock (including the
issuance of any debt or other instrument at any time over the life thereof
convertible into or exchangeable for Common Stock) in any transaction which, in
the opinion of counsel to the Company, is intended to be exempt or not subject
to registration under the Securities Act. The restriction contained in this
Section shall not apply to: (i) the issuance of shares of Common Stock or
options or warrants to purchase shares of Common Stock, to employees, officers
or directors of, or consultants to, the Company pursuant to any stock option or
stock purchase plan or agreements approved by the Company's Board of Directors,
(ii) shares of Common Stock issuable upon exercise of any currently outstanding
warrants and upon conversion of any currently outstanding convertible securities
of the Company, in each case as disclosed in SCHEDULE 2.1(C), (iii) shares of
Common Stock issuable upon exercise of the Warrants in accordance with their
respective terms and (iv) the issuance of shares of Common Stock in connection
with a strategic partnership or other business transaction, other than a
business transaction or strategic partnership in which the principal purpose is
to raise capital.
3.9 CERTAIN SECURITIES LAWS DISCLOSURES; PUBLICITY. The Company shall: (i)
on the Closing Date issue a press release acceptable to the Purchasers
disclosing the transactions contemplated hereby, (ii) file with the Commission a
Report on Form 8-K disclosing the transactions contemplated hereby in the time
and manner required under the Exchange Act, and (iii) timely file with the
Commission a Form D promulgated under the Securities Act. The Company shall, no
less than two Business Days prior to the filing of any disclosure required by
clauses (ii) and (iii) above, provide a copy thereof to the Purchasers for their
review. The Company and the Purchasers shall consult with each other in issuing
any other press releases or otherwise making public statements or filings and
other communications with the Commission or any regulatory agency or stock
market or trading facility with respect to the transactions contemplated hereby
and neither party shall issue any such press release or otherwise make any such
public statement, filings or other communications without the prior written
consent of the other, except if such disclosure is required by law or stock
market regulation, in which such case the disclosing party shall promptly
provide the other party with prior notice of such public statement, filing or
other communication.
12
3.10 REIMBURSEMENT. If any Purchaser, other than by reason of its
negligence or willful misconduct, becomes involved in any capacity in any
action, proceeding or investigation brought by or against any Person, including
stockholders of the Company, in connection with or as a result of the
consummation of the transactions contemplated by the 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. The reimbursement obligations of the Company under this paragraph
shall be in addition to any liability which the Company may otherwise have,
shall extend upon the same terms and conditions to any Affiliates of the
Purchasers who are actually named in such action, proceeding or investigation,
and partners, directors, agents, employees and controlling persons (if any), as
the case may be, of the Purchasers and any such Affiliate, and shall be binding
upon and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Purchasers and any such Affiliate and any
such Person. The Company also agrees that neither the Purchasers nor any such
Affiliates, partners, directors, agents, employees or controlling persons shall
have any liability to the Company or any Person asserting claims on behalf of or
in right of the Company in connection with or as a result of the consummation of
the Transaction Documents except to the extent that any losses, claims, damages,
liabilities or expenses incurred by the Company result from the negligence or
willful misconduct of the applicable Purchaser or entity in connection with the
transactions contemplated by this Agreement.
3.11 SHAREHOLDER RIGHTS PLAN. No claim will be made or enforced by the
Company 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, by virtue of receiving Securities or shares of Common
Stock under the Transaction Documents.
3.12 DISCLOSURE. The Company confirms that as long as a Purchaser owns
Shares or Warrants, neither it nor any of its directors or officers will provide
any of the Purchasers or its agents or counsel with any information that
constitutes or might constitute material non-public information. The Company
understands and confirms that the Purchasers shall be relying on the foregoing
representations in effecting transactions in securities of the Company.
3.13 PUT EVENT. If during the period between the date hereof and the sixth
month anniversary of the Effective Date, the Common Stock fails to be listed or
quoted for trading on the NASDAQ for a period of four consecutive Trading Days,
then a Purchaser may provide the Company with a notice (an "EVENT NOTICE ")
requiring the Company to reacquire all or a portion of the Shares which such
Purchaser acquired hereunder and then still holds at a put price (the "PUT
PRICE") per share equal to the greater of: (i) the purchase price per Share paid
by the Purchaser for such shares and (ii) the closing sales price per share for
such Shares on the date of the delivery of the Event Notice or date of the
payment in full of the Put Price, whichever is greatest (if there is no closing
sales price on such date, then the last closing sales price reported for the
Common Stock shall be the closing sales price calculated for such purpose). The
Company shall pay the Put Price by the seventh Trading Day following the date of
the delivery of the Event Notice. Interest shall accrue on the aggregate Put
Price from the date such amount is due until paid in full at the rate of 15% per
annum (or such lesser maximum amount that is permitted to be paid by applicable
law), to accrue daily from the date such payment is due hereunder through and
including the date of payment. Any Event Notice may be rescinded by the
delivering Purchaser at any time prior to its receipt of the full Put Price.
13
ARTICLE IV
MISCELLANEOUS
4.1 FEES AND EXPENSES. At the Closing, the Company shall reimburse the
Purchasers for their legal fees and expenses incurred in connection with the
preparation and negotiation of the Transaction Documents by paying to Xxxxxxxx
Xxxxxxxxx an aggregate of $25,000 for the preparation and negotiation of the
Transaction Documents. The amount contemplated by the immediately preceding
sentence shall be retained by the Purchasers and shall not be delivered to the
Company at the Closing. Other than the amount contemplated herein, and except as
otherwise specified in the Registration Rights Agreement, 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 issuance of the Securities.
4.2 ENTIRE AGREEMENT; AMENDMENTS. The Transaction Documents, together with
the Exhibits and Schedules thereto and Transfer Agent Instructions, 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.
4.3 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 (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (New York City
time) on a Business Day, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (iv) 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 follows:
If to the Company: MacroChem Corporation
000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer
With a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
If to a Purchaser: To the address set forth under such
Purchaser's name on the signature
pages hereto
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
14
4.4 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 each of the Purchasers 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 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 accruing to it thereafter.
4.5 HEADINGS. 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.
4.6 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 the Purchasers. Except as set forth in
Section 3.1(a), the Purchasers may not assign this Agreement or any of the
rights or obligations hereunder without the consent of the Company. This
provision shall not limit any Purchaser's right to transfer securities or
transfer or assign rights under the Registration Rights Agreement.
4.7 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.
4.8 GOVERNING LAW. The corporate laws of the State of Delaware shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other 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 in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City of
New York, Borough of Manhattan 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.
15
4.9 SURVIVAL. The representations, warranties, agreements and covenants
contained herein shall survive the Closing and the delivery and exercise of the
Warrants for a period of five years.
4.10 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) the same with the same force and effect as if such facsimile signature
page were an original thereof.
4.11 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall 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 which shall be a reasonable substitute
therefore, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
4.12 REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers will be entitled to specific performance of the obligations of the
Company under the Transaction Documents. The Company and each of the Purchasers
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of its 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.
4.13 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOWS]
16
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.
MACROCHEM CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, Chief Financial Officer
& Treasurer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
17
PINE RIDGE FINANCIAL LTD.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
Aggregate Purchase Price
or Shares to be acquired: $7,500,000
Address for Notice:
Pine Ridge Financial Ltd.
c/x Xxxxxxx Capital Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Avi Vigder
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
DMG LEGACY INTERNATIONAL LTD.
By: /s/ XXX XXXXXXX
---------------
Name: Xxx XxXxxxx
Title: Director
Aggregate Purchase Price
for Shares to be acquired: $162,136
Address for Notice:
Attn: Xxxxx Xxxxx
DMG, LLC
Xxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
SDS MERCHANT FUND, L.P.
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Managing Member
Aggregate Purchase Price
for Shares to be acquired: $837,864
Address for Notice:
SDS Merchant Fund, L.P.
Xxx Xxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxx
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
PAR INVESTMENT PARTNERS, L.P.
By: /s/ XXXXXXX XXXXXXX
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer, PAR Capital
Management, Inc. which is General
Partner to PAR Group, L.P. which is
General Partner of PAR Investment
Partners, L.P.
Aggregate Purchase Price
for Shares to be acquired: $648,000
Address for Notice:
Xxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
NARRAGANSETT I, L.P.
By: /s/ XXXXXX X. XXXXXXX III
-------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Managing Member
Aggregate Purchase Price
for Shares to be acquired: $330,000
Address for Notice:
Narragansett I, L.P.
000 Xxxx 00xx, 00xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
NARRAGANSETT OFFSHORE LTD.
By: /s/ XXXXXX X. XXXXXXX III
-------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Managing Member
Aggregate Purchase Price
for Shares to be acquired: $670,000
Address for Notice:
Narragansett Offshore, Ltd.
000 Xxxx 00xx, 00xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxx
