Contract
Execution
Copy
by
and between
KINGSBRIDGE
CAPITAL LIMITED
and
DISCOVERY
LABORATORIES, INC.
dated
as of June 11, 2010
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
1
|
|
ARTICLE
II
|
PURCHASE
AND SALE OF COMMON STOCK
|
7
|
|
Section
2.1
|
Purchase
and Sale of Stock
|
7
|
|
Section
2.2
|
Closing
|
7
|
|
Section
2.3
|
Warrant
|
7
|
|
Section
2.4
|
Blackout
Shares
|
7
|
|
ARTICLE
III
|
DRAW
DOWN TERMS
|
8
|
|
Section
3.1
|
Draw
Down Notice
|
8
|
|
Section
3.2
|
Supplemental
Amount
|
8
|
|
Section
3.3
|
Number
of Shares
|
8
|
|
Section
3.4
|
Limitation
on Draw Downs
|
9
|
|
Section
3.5
|
Trading
Cushion
|
9
|
|
Section
3.6
|
Settlement
|
9
|
|
Section
3.7
|
Delivery
of Shares; Payment of Draw Down Amount.
|
9
|
|
Section
3.8
|
Failure
to Deliver Shares
|
10
|
|
ARTICLE
IV
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
11
|
|
|
||
|
Section
4.1
|
Organization,
Good Standing and Power
|
11
|
|
Section
4.2
|
Authorization;
Enforcement
|
11
|
|
Section
4.3
|
Capitalization
|
12
|
|
Section
4.4
|
Issuance
of Shares
|
12
|
|
Section
4.5
|
No
Conflicts
|
13
|
|
Section
4.6
|
Commission
Documents, Financial Statements.
|
14
|
|
Section
4.7
|
No
Material Adverse Change
|
14
|
|
Section
4.8
|
No
Undisclosed Liabilities
|
15
|
|
Section
4.9
|
No
Undisclosed Events or Circumstances
|
15
|
|
Section
4.10
|
Actions
Pending
|
15
|
|
Section
4.11
|
Compliance
with Law
|
15
|
|
Section
4.12
|
Operation
of Business.
|
16
|
|
Section
4.13
|
Certain
Fees
|
17
|
|
Section
4.14
|
Disclosure
|
17
|
|
Section
4.15
|
Material
Non-Public Information
|
17
|
|
Section
4.16
|
Acknowledgment
Regarding Investor’s Purchase of Shares
|
18
|
|
ARTICLE
V
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR
|
18
|
|
Section
5.1
|
Organization
and Standing of the Investor
|
18
|
|
Section
5.2
|
Authorization
and Power
|
18
|
|
Section
5.3
|
No
Conflicts
|
18
|
|
Section
5.4
|
Financial
Capability
|
19
|
|
Section
5.5
|
Information
|
19
|
|
Section
5.6
|
Trading
Restrictions
|
19
|
|
Section
5.7
|
Not
an Affiliate
|
19
|
|
Section
5.8
|
Prospectus
Delivery
|
20
|
|
ARTICLE
VI
|
COVENANTS
OF THE COMPANY
|
20
|
|
Section
6.1
|
Securities
Compliance
|
20
|
|
Section
6.2
|
Reservation
of Common Stock
|
20
|
|
Section
6.3
|
Registration
and Listing
|
20
|
|
Section
6.4
|
Compliance
with Laws.
|
21
|
|
Section
6.5
|
Other
Financing
|
21
|
|
Section
6.6
|
Prohibited
Transactions
|
22
|
|
Section
6.7
|
Corporate
Existence
|
22
|
|
Section
6.8
|
Non-Disclosure
of Non-Public Information
|
22
|
|
Section
6.9
|
Notice
of Certain Events Affecting Registration; Suspension of Right to Request a
Draw Down
|
23
|
|
Section
6.10
|
Amendments
to the Registration Statement
|
23
|
|
Section
6.11
|
Prospectus
Delivery
|
23
|
|
|
||
|
ARTICLE
VII
|
CONDITIONS
TO THE OBLIGATION OF THE INVESTOR TO ACCEPT A DRAW DOWN
|
24
|
|
Section
7.1
|
Accuracy
of the Company’s Representations and Warranties
|
24
|
|
Section
7.2
|
Performance
by the Company
|
24
|
|
Section
7.3
|
Compliance
with Law
|
24
|
|
Section
7.4
|
Effective
Registration Statement
|
24
|
|
Section
7.5
|
No
Knowledge
|
24
|
|
Section
7.6
|
No
Suspension
|
25
|
|
Section
7.7
|
No
Injunction
|
25
|
|
Section
7.8
|
No
Proceedings or Litigation
|
25
|
|
Section
7.9
|
Sufficient
Shares Registered for Sale
|
25
|
|
Section
7.10
|
Payment
of Fees and Expenses
|
25
|
|
Section
7.11
|
Opinion
of Counsel
|
25
|
|
Section
7.12
|
Accuracy
of Investor’s Representations and Warranties
|
25
|
|
|
|
|
|
ARTICLE
VIII
|
TERMINATION
|
25
|
|
Section
8.1
|
Term
|
25
|
|
Section
8.2
|
Other
Termination; Blackout Periods.
|
26
|
|
Section
8.3
|
Effect
of Termination
|
27
|
|
|
||
|
ARTICLE
IX
|
INDEMNIFICATION
|
27
|
|
Section
9.1
|
Indemnification.
|
27
|
- ii
-
|
Section
9.2
|
Notification
of Claims for Indemnification
|
28
|
|
ARTICLE
X
|
MISCELLANEOUS
|
30
|
|
Section
10.1
|
Fees
and Expenses.
|
30
|
|
Section
10.2
|
Reporting
Entity for the Common Stock
|
30
|
|
Section
10.3
|
Brokerage
|
31
|
|
Section
10.4
|
Notices
|
32
|
|
Section
10.5
|
Assignment
|
33
|
|
Section
10.6
|
Amendment;
No Waiver
|
33
|
|
Section
10.7
|
Entire
Agreement
|
33
|
|
Section
10.8
|
Title
and Subtitles
|
34
|
|
Section
10.9
|
Counterparts
|
34
|
|
Section
10.10
|
Choice
of Law
|
34
|
|
Section
10.11
|
Specific
Enforcement, Consent to Jurisdiction.
|
34
|
|
Section
10.12
|
Survival
|
34
|
|
Section
10.13
|
Publicity
|
35
|
|
Section
10.14
|
Severability
|
35
|
|
Section
10.15
|
Further
Assurances
|
35
|
- iii
-
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”) is
entered into as of the 11th day of
June, 2010, by and between Kingsbridge Capital Limited, an entity organized and
existing under the laws of the British Virgin Islands, whose business address is
X.X. Xxx 0000, Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx, Xxxxxxx
Xxxxxxx (the “Investor”), and
Discovery Laboratories, Inc. a corporation organized and existing under the laws
of the State of Delaware (the “Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions and
limitations set forth herein, the Company may issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase from the
Company, up to $35 million worth of newly-issued shares of Common Stock (as
defined below); and
WHEREAS,
the offer and sale of the shares of Common Stock hereunder have been registered
by the Company pursuant to the Registration Statement (as defined below), which
has been declared effective by order of the Commission under the Securities Act;
and
WHEREAS,
in consideration for the Investor’s execution and delivery of, and its
performance of its obligations under, this Agreement, the Company is
concurrently issuing to the Investor a Warrant in the form of Exhibit A hereto (the
“Warrant”)
pursuant to which the Investor may purchase from the Company up to 1,250,000
shares of Common Stock, upon the terms and subject to the conditions set forth
therein;
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“Adjusted Average
Volume” means the average trading volume of the thirty (30) Trading Days
during the forty (40) Trading Days prior to the issuance of the Draw Down Notice
that results from excluding the five (5) Trading Days with the highest trading
volume during such period and the five (5) Trading Days with the lowest trading
volume during such period; provided, however, that in the event
of any Reverse Split that takes effect during any such forty (40) day measuring
period for which the Company has elected to make a Draw Down using the “Second Methodology” for
determining the “Minimum Obligated Amount,” then the Adjusted Average Volume
shall be further adjusted accordingly to reflect such Reverse
Split.
“Blackout Amount”
shall have the meaning assigned to such term in Section 8.2 hereof.
“Blackout Notice”
shall have the meaning assigned to such term in Section 8.2 hereof.
“Blackout Period”
shall have the meaning assigned to such term in Section 8.2 hereof
“Blackout Shares”
shall have the meaning assigned to such term in Section 8.2 hereof.
“Bylaws” shall have
the meaning assigned to such term in Section 4.3 hereof.
“Charter” shall have
the meaning assigned to such term in Section 4.3 hereof.
“Closing Date” shall
have the meaning assigned to such term in Section 2.2 hereof.
“Closing Price” as of
any particular Trading Day, means the closing price per share of the Common
Stock as reported by the Principal Market on such day.
“Commission” means the
United States Securities and Exchange Commission.
“Commission Documents”
shall have the meaning assigned to such term in Section 4.6
hereof.
“Commitment Period”
means the period commencing on the Closing Date and expiring on the earliest to
occur of (i) the date on which the Investor shall have purchased Shares
pursuant to this Agreement representing the Maximum Commitment Amount,
(ii) the date this Agreement is terminated pursuant to Article VIII hereof,
and (iii) the date occurring thirty-six (36) months from the Closing
Date.
“Common Stock” means
the common stock of the Company, par value $0.001 per share.
“Condition Satisfaction
Date” shall have the meaning assigned to such term in Article VII
hereof.
“Cure Period” shall
have the meaning specified in Section 3.8.
“Damages” means any
loss, claim, damage, liability, costs and expenses (including, without
limitation, reasonable attorneys’ fees and expenses and costs and reasonable
expenses of expert witnesses and investigation).
“Draw Down” shall have
the meaning assigned to such term in Section 3.1 hereof.
“Draw Down Amount”
means the aggregate dollar amount of a Draw Down, including the Minimum
Obligated Amount plus
the Supplemental Amount (if any).
“Draw Down Notice”
shall have the meaning assigned to such term in Section 3.1 hereof.
“Draw Down Pricing
Period” means, with respect to each Draw Down, a period of eight (8)
consecutive Trading Days beginning on the first Trading Day specified in a Draw
Down Notice.
“DTC” means the
Depository Trust Company, or any successor thereto.
“EST” means Eastern
Standard Time in the United States.
“Exchange Act” means
the United States Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“FDA” shall have the
meaning specified in Section 4.12.
- 2
-
“FINRA” means the
United States Financial Industry Regulatory Authority.
“GAAP” shall have the
meaning specified in Section 4.6.
“Governmental
Licenses” shall have the meaning specified in Section 4.12.
“IDEA” shall have the
meaning assigned to such term in Section 4.6.
“Intellectual
Property” shall have the meaning specified in Section 4.12.
“Knowledge” means the
actual knowledge of the Company’s Chief Executive Officer, Chief Financial
Officer, General Counsel or Deputy General Counsel.
“Make Whole Amount”
shall have the meaning specified in Section 3.8.
“Market
Capitalization” means, as of any Trading Day, the product of (i) the
Closing Price multiplied
by (ii) the number of outstanding shares of Common Stock as reported
by Bloomberg L.P. using the DES function.
“Material Adverse
Effect” means any effect that is not negated, corrected, cured or
otherwise remedied within a reasonable period of time on the business,
operations, properties or financial condition of the Company and its
consolidated subsidiaries that is material and adverse to the Company and such
subsidiaries, taken as a whole, and/or any condition, circumstance, or situation
that would prohibit or otherwise interfere with the ability of the Company to
perform any of its obligations under this Agreement in any material respect;
provided, however, that none of the following shall individually constitute a
“Material Adverse
Effect”: (i) the effects of conditions or events that are
generally applicable to the capital, financial, banking or currency markets or
the biotechnology or pharmaceutical industries; (ii) the effects of conditions
or events that are reasonably expected to occur in the Company’s ordinary course
of business (such as, by way of example only, failed clinical trials, serious
adverse events involving the Company’s product candidates or products, delays in
product development or commercial launch, unfavorable regulatory determinations,
difficulties in generating product sales or involving collaborators or
intellectual property disputes); (iii) any changes or effects resulting from the
announcement or consummation of the transactions contemplated by this Agreement,
including, without limitation, any changes or effects associated with any
particular Draw Down, and (iv) changes in the market price of the Common
Stock.
“Maximum Commitment
Amount” means the lesser of (i) the number of Shares issued and sold to
the Investor hereunder in respect of $35 million in aggregate Draw Down Amounts
actually paid or (ii) 31,597,149 shares of Common Stock (representing 19.99% of
158,064,779, the number of shares of Common Stock outstanding as of June 11,
2010 and as adjusted for stock splits, stock combinations, stock dividends and
recapitalizations that occur on or after the date of this Agreement) minus the
number of Blackout Shares, if any, delivered to the Investor under Section
8.2(b) hereunder; provided, however, that the Maximum Commitment Amount shall
not exceed under any circumstances that number of shares of Common Stock that
the Company may issue pursuant to this Agreement and the transactions
contemplated hereby without (a) breaching the Company's obligations under the
rules and regulations of The NASDAQ Capital Market® and the
Principal Market (if different) or (b) obtaining stockholder approval under the
applicable rules and regulations of the NASDAQ Capital Market and the Principal
Market (if different), notwithstanding that such approval may have been
obtained.
- 3
-
“Minimum Obligated
Amount” means, in respect of a Draw Down, the maximum guaranteed amount
of funds that the Company may request that, subject to the conditions,
limitations and adjustments set forth herein (including limitations and
adjustments based upon the Threshold Price), the Investor will be
unconditionally obligated to deliver. The Minimum Obligated Amount
shall be determined, in the Company’s sole discretion, using either of the
following methodologies:
(a) First
Methodology:
Using
this methodology, the Minimum Obligated Amount will be based solely upon the
Threshold Price applicable to the Draw Down Pricing Period, as determined using
the following table (which Threshold Price shall be adjusted accordingly in the
event of any Reverse Split):
|
Minimum Obligated Amount Based on First Methodology
|
||||
|
Threshold Price Range
|
Minimum Obligated Amount
|
|||
|
Equal
to or greater than $6.00
|
$ | 7,250,000 | ||
|
Equal
to or greater than $5.00 but less than $6.00
|
$ | 6,500,000 | ||
|
Equal
to or greater than $4.00 but less than $5.00
|
$ | 4,250,000 | ||
|
Equal
to or greater than $3.00 but less than $4.00
|
$ | 3,500,000 | ||
|
Equal
to or greater than $2.00 but less than $3.00
|
$ | 2,750,000 | ||
|
Equal
to or greater than $1.25 but less than $2.00
|
$ | 2,000,000 | ||
|
Equal
to or greater than $0.75 but less than $1.25
|
$ | 1,350,000 | ||
|
Equal
to or greater than $0.50 but less than $0.75
|
$ | 1,000,000 | ||
|
Equal
to or greater than $0.25 but less than $0.50
|
$ | 500,000 | ||
|
Equal
to or greater than $0.20 but less than $0.25
|
$ | 350,000 | ||
(b) Second
Methodology:
Alternatively,
the Minimum Obligated Amount may be determined based upon the following
formula:
- 4
-
Minimum
Obligated Amount = (8 Trading Days per Draw Down Pricing Period) multiplied by (Adjusted
Average Volume) multiplied by
(Threshold Price) multiplied by
(0.1985).
(c) In
respect of any Draw Down, the Company may request all or any portion of the
Minimum Obligated Amount.
(d) Notwithstanding
the foregoing, under no circumstance shall the Minimum Obligated Amount in
respect of any Draw Down exceed the lesser of (i) 3.5% of Market Capitalization
as of the date upon which the applicable Draw Down Notice is delivered or (ii)
$15,000,000.
“New VWAP” shall have
the meaning assigned to such term in Section 8.2 hereof.
“Old VWAP” shall have
the meaning assigned to such term in Section 8.2 hereof.
“Permitted
Transaction” shall have the meaning assigned to such term in Section 6.5
hereof.
“Person” means any
individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including any government or political
subdivision or an agency or instrumentality thereof.
“Primary Discount
Rate” means, for any Trading Day during a Draw Down Pricing Period, (i)
4.375% if the VWAP in respect of such Trading Day is equal to or exceeds $6.00;
(ii) 4.750% if the VWAP in respect of such Trading Day is equal to or exceeds
$5.00 but is less than $6.00; (iii) 5.250% if the VWAP in respect of such
Trading Day is equal to or exceeds $4.00 but is less than $5.00; (iv) 5.750% if
the VWAP in respect of such Trading Day is equal to or exceeds $3.00 but is less
than $4.00; (v) 6.000% if the VWAP in respect of such Trading Day is equal to or
exceeds $2.00 but is less than $3.00; (vi) 7.500% if the VWAP in respect of such
Trading Day is equal to or exceeds $1.25 but is less than $2.00; (vii) 8.500% if
the VWAP in respect of such Trading Day is equal to or exceeds $0.75 but is less
than $1.25; (viii) 9.500% if the VWAP in respect of such Trading Day is equal to
or exceeds $0.50 but is less than $0.75; (ix) 15.000% if the VWAP in respect of
such Trading Day is equal to or exceeds $0.25 but is less than $0.50 or (x)
17.500% if the VWAP in respect of such Trading Day is equal to or exceeds $0.20
but is less than $0.25.
“Principal Market”
means the NYSE Amex, NASDAQ Capital Market, NASDAQ Global Select Market, NASDAQ
Global Market or New York Stock Exchange, whichever is at the time the principal
trading exchange or market for the Common Stock.
“Prohibited
Transaction” shall have the meaning assigned to such term in Section 6.6
hereof.
“Prospectus” as used
in this Agreement means the prospectus in the form included in the Registration
Statement, as supplemented from time to time pursuant to Rule 424(b) of the
Securities Act, including the documents incorporated by reference
therein.
- 5
-
“Purchase Price” means
the per share price at which Shares will be issued and sold hereunder for any
given Trading Day, which shall be equal to the product of the VWAP multiplied by (one (1) minus the Primary Discount
Rate); provided that, notwithstanding the actual VWAP for any given Trading Day,
(i) in respect of any Minimum Obligated Amount, the price used as the VWAP for
the foregoing formula in respect of such Trading Day shall not be less than the
Threshold Price and (ii) in respect of any Supplemental Amount (or portion
thereof), the price used as the VWAP for the foregoing formula in respect of
such Trading Day shall not be less than the Supplemental Threshold
Price.
“Registration
Statement” means the registration statement on Form S-3, Commission File
Number 333-151654, filed on June 13, 2008 by the Company with the
Commission under the Securities Act for the registration of Common Stock, as
such Registration Statement may be amended and supplemented from time to time
(including pursuant to Rule 424(b) under the Securities Act), including all
documents filed as part thereof or incorporated by reference therein, and
including all information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430A or Rule 430B under the Securities
Act.
“Reverse Split” means
any reverse stock split, stock combination or other similar action taken by the
Company that reduces the number of shares of Common Stock outstanding and
simultaneously increases the price per share therefor,
proportionately.
“Securities Act” the
United States Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder.
“Settlement Date”
shall have the meaning specified in Section 3.5.
“Shares” means the
shares of Common Stock of the Company that are and/or may be purchased
hereunder.
“SOXA” shall have the
meaning specified in Section 4.6.
“Subsidiary” means any
corporation or other entity of which at least a majority of the securities or
other ownership interest having ordinary voting power (absolutely or
contingently) for the election of directors or other persons performing similar
functions are at the time owned directly or indirectly by the Company and/or any
of its other Subsidiaries.
“Supplemental Amount”
means funds that the Company may request in connection with a Draw Down that
would be in addition to the Minimum Obligated Amount, which, when aggregated
with all other amounts drawn by the Company (including such Minimum Obligated
Amount) shall not exceed the Aggregate Commitment Amount.
“Supplemental Threshold
Price” means, in respect of a Draw Down Pricing Period and a Supplemental
Amount requested by the Company therefor, a price specified by the Company, in
its sole discretion, in the applicable Draw Down Notice.
“Threshold Price”
means, in respect of a Draw Down Pricing Period, either (i) 90% of the closing
price of the Common Stock on the Trading Day immediately preceding the first
Trading Day of such Draw Down Pricing Period or (ii) a price specified by the
Company, in its sole discretion, in the applicable Draw Down Notice, provided
that under no circumstances may the Threshold Price be less than $0.20 per
share.
- 6
-
“Trading Day” means
any day other than a Saturday or a Sunday on which the Principal Market is open
for trading in equity securities.
“VWAP” means the
volume weighted average price (the aggregate sales price of all trades of Common
Stock during each Trading Day divided by the total number of shares of Common
Stock traded during such Trading Day) of the Common Stock during any Trading Day
as reported by Bloomberg, L.P. using the AQR function, or another mutually
agreed recognized reporting platform.
“Warrant” shall have
the meaning set forth in the recitals of this Agreement.
“Warrant Shares” means
the shares of Common Stock issuable to the Investor upon exercise of the
Warrant.
ARTICLE
II
PURCHASE
AND SALE OF COMMON STOCK
Section
2.1 Purchase and Sale of
Stock. Upon the terms and subject to the conditions set forth
in this Agreement, the Company shall to the extent it elects to make Draw Downs
in accordance with Article III hereof, issue and sell to the Investor and the
Investor shall purchase Common Stock from the Company for an aggregate (in Draw
Down Amounts) of up to the Maximum Commitment Amount, consisting of purchases
based on Draw Downs in accordance with Article III hereof.
Section
2.2 Closing. In
consideration of and in express reliance upon the representations, warranties,
covenants, terms and conditions of this Agreement, the Company agrees to issue
and sell to the Investor, and the Investor agrees to purchase from the Company,
that number of the Shares to be issued in connection with each Draw
Down. The execution and delivery of this Agreement (the “Closing”) shall take
place at the offices of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx,
Xxx Xxxx, XX 00000 at 5:00 p.m. local time on June 11, 2010, or at such other
time and place (including, without limitation, by way of facsimile exchange of
executed documents from different locations) or on such date as the Investor and
the Company may agree upon (the “Closing
Date”). Each party shall deliver at or prior to the Closing
all documents, instruments and writings required to be delivered at the Closing
by such party pursuant to this Agreement.
Section
2.3 Warrant. On
the Closing Date, the Company shall issue and deliver the Warrant to the
Investor. For sake of clarity, in the event that neither a
registration statement nor an exemption from registration is available, there is
no circumstance that requires the Company to effect a net cash settlement of the
Warrant.
Section
2.4 Blackout
Shares. The Company shall issue and deliver any Blackout
Amount or issue and deliver any Blackout Shares to the Investor in accordance
with Section 8.2(b) hereof.
- 7
-
ARTICLE
III
DRAW
DOWN TERMS
Subject
to the satisfaction of the conditions hereinafter set forth in this Agreement,
the parties agree as follows:
Section
3.1 Draw Down
Notice. During the Commitment Period, the Company may, in its
sole discretion, issue a Draw Down Notice (as hereinafter defined) which shall
specify the dollar amount the Company desires to raise from the Investor from
the sale of Common Stock hereunder (each such capital raising transaction, a
“Draw Down”),
including the Minimum Obligated Amount and any Supplemental
Amount. The Company shall inform the Investor in writing by sending a
duly completed notice in the form of Exhibit B hereto
(each, a “Draw Down
Notice”) by e-mail to the addresses set forth in Section 10.4, with a
copy to the Investor’s counsel, as to such Draw Down Amount before commencement
of trading on the first Trading Day of the related Draw Down Pricing
Period. In addition to the Draw Down Amount, each Draw Down Notice
shall designate the first Trading Day of the Draw Down Pricing Period, the
Threshold Price, the Supplemental Threshold Price (if any) and the allocation of
Minimum Obligated Amount and Supplemental Amount (if any). Each Draw
Down Notice shall be accompanied by a certificate (substantially in the form of
Exhibit C
hereof), signed by the Chief Executive Officer or Chief Financial Officer, dated
as of the date of such Draw Down Notice.
Section
3.2 Supplemental
Amount. In the event that the Company chooses to request a
Supplemental Amount in connection with a Draw Down, such request shall be deemed
to be an option granted by the Company to the Investor to purchase additional
Shares (i.e., in
addition to the Shares purchased in respect of the Minimum Obligated Amount) for
an amount up to the Supplemental Amount. The Investor may exercise
all or any portion of this option for any Trading Day during the Draw Down
Pricing Period, and purchase Shares in respect of all or any portion of the
Supplemental Amount, at a price per share equal to the Purchase
Price. For any Trading Day during the applicable Draw Down Pricing
Period for which the Investor exercises its option, it shall notify the Company
in writing not later than 6:59 A.M. EST on the Trading Day immediately following
the Trading Day for which such purchase is effectively made. Such
notice to the Company, substantially in the form of Exhibit D hereof,
shall specify the aggregate dollar amount for the purchase, the Purchase Price
and the resulting number of Shares to be purchased in respect of the
Supplemental Amount requested. Any portion of a Supplemental Amount
remaining unexercised after 8:00 P.M. EST on the final Trading Day of a Draw
Down Pricing Period shall automatically expire, terminate and be of no further
force or effect.
Section
3.3 Number of
Shares. The number of Shares to be issued in connection with
each Draw Down shall be equal to the sum of the number of shares issuable for
each Trading Day of the Draw Down Pricing Period. Subject to Section
3.7(b), the number of Shares issuable for a Trading Day during a Draw Down
Pricing Period shall be equal to the sum of the quotients of MOA divided by PP [(MOA)/PP] plus SA divided by XXXX [(SA)/XXXX] , where MOA is equal to one eighth
(1/8th) of the
Minimum Obligated Amount, SA is equal to the
Supplemental Amount (or portion thereof) exercised by the Investor in respect of
such Trading Day, PP is
equal to the Purchase Price in respect of such Trading Day and XXXX is equal to
the Supplemental Amount Purchase Price in respect of such Trading
Day.
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Section
3.4 Limitation on Draw
Downs. Only one Draw Down shall be permitted for each Draw
Down Pricing Period.
Section
3.5 Trading
Cushion. Unless the parties agree in writing otherwise, there
shall be a minimum of three (3) Trading Days between the expiration of any Draw
Down Pricing Period and the beginning of the next succeeding Draw Down Pricing
Period.
Section
3.6 Settlement. The
number of Shares purchased by the Investor in any Draw Down shall be determined
and settled on two separate dates. Shares purchased by the Investor in respect
of the first four Trading Days of any Draw Down Pricing Period shall be
determined and settled no later than the sixth (6th)
Trading Day of such Draw Down Pricing Period. Shares purchased by the
Investor in respect of the second (2nd) four
(4) Trading Days of any Draw Down Pricing Period shall be determined and settled
no later than the second (2nd)
Trading Day after the last Trading Day of such Draw Down Pricing
Period. Each date on which settlement of the purchase and sale of
Shares occurs hereunder being referred to as a “Settlement
Date.” The Investor shall provide the Company with delivery
instructions for the Shares to be issued at each Settlement Date at least two
Trading Days in advance of such Settlement Date. The number of Shares
actually issued shall be rounded down to the nearest whole number of
Shares.
Section
3.7 Delivery of Shares; Payment
of Draw Down Amount.
(a) On
each Settlement Date, the Company shall deliver the Shares purchased by the
Investor to the Investor or its designee(s) via DTC’s Deposit/Withdrawal at
Custodian (DWAC) system, and the Investor shall cause payment therefor to be
made to the Company’s designated account by wire transfer of immediately
available funds, if the Shares are received by the Investor no later than 12:00
P.M. EST, or next day available funds, if the Shares are received
thereafter. Upon the written request of the Company, the Investor
will cause its banker to confirm to the Company that the Investor has provided
irrevocable instructions to cause payment for the Shares to be made as set forth
above, upon confirmation by such banker that the Shares have been delivered
through the DTC in unrestricted form.
(b) (i)
for each Trading Day during a Draw Down Pricing Period on which the VWAP is less
than the Threshold Price, such Trading Day shall be disregarded in calculating
the number of Shares to be issued in respect of the Minimum Obligated Amount for
such Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing
Period shall be reduced by one eighth (1/8th) of the
Minimum Obligated Amount specified in the Draw Down Notice; provided, however, that the
Investor may purchase Shares in respect of such Trading Day and Minimum
Obligated Amount of up to one eighth (1/8th) of
such Minimum Obligated Amount for a Purchase Price determined using a VWAP equal
to the Threshold Price; (ii) if trading in the Company’s Common Stock is
suspended for any reason for more than three (3) consecutive or non-consecutive
hours during trading hours on the Principal Market on any Trading Day during a
Draw Down Pricing Period, such Trading Day shall be disregarded in calculating
the number of Shares to be issued in respect of the Minimum Obligated Amount for
such Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing
Period shall be reduced by one eighth (1/8th) of the
Minimum Obligated Amount specified in the Draw Down Notice; provided, however, that the
Investor may purchase Shares in respect of such Trading Day and Minimum
Obligated Amount of up to one eighth (1/8th) of
such Minimum Obligated Amount and (iii) for each Trading Day during a Draw Down
Pricing Period for which the Company has specified a Supplemental Amount, but
the VWAP is less than the Supplemental Threshold Price, the Investor may
purchase Shares in respect of such Supplemental Amount (or portion thereof) in
consideration for payment to the Company of an amount per Share equal to the
Purchase Price, determined using a VWAP equal to the Supplemental Threshold
Price. For the avoidance of doubt, any Trading Day that is
disregarded for the purposes of calculating the number of Shares to be issued in
respect of a Minimum Obligated Amount in accordance with (i) and (ii) above
shall only reduce such number of Shares by one eighth (1/8th) of the
Minimum Obligated Amount, notwithstanding that such Trading Day may be so
disregarded for the reasons specified in both (i) and (ii).
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(c) In
the event that the Investor chooses to purchase Shares in respect of a Trading
Day which would otherwise not be issued and sold on the basis of one of the
reasons set forth in Section 3.7(b) above, the Investor shall notify the Company
in writing not later than 8 A.M. EST on the Trading Day immediately following
such Trading Day.
Section
3.8 Failure to Deliver
Shares.
(a) If
on any Settlement Date, the Company fails to take all actions within its
reasonable control to cause the delivery of the Shares purchased by the
Investor, and such failure is not cured within two (2) Trading Days following
such Settlement Date (such period, the “Cure Period”), the Company shall pay to
the Investor on demand in cash by wire transfer of immediately available funds
to an account designated by the Investor, as liquidated damages for such failure
and not as a penalty, an amount equal to two percent (2.0%) of the payment
required to be paid by the Investor on such Settlement Date (i.e., the Draw Down
Amount). If on or prior to the 70th day
following the Settlement Date, the Investor shall notify the Company of the Make
Whole Amount, the Company shall pay to the Investor on demand in cash by wire
transfer of immediately available funds the difference, if positive, between the
Make Whole Amount and the amount paid to Investor as liquidated damages pursuant
to the foregoing sentence. If the Company shall fail to make timely
payment of the Make Whole Amount within two (2) Trading Days following demand
therefor from the Investor as herein provided, as liquidated damages for such
failure and not as a penalty, in addition to the Make Whole Amount, the Company
shall pay to the Investor an additional two percent (2.0%) for each 30-day
period (prorated for such periods less than 30 days) following the date of such
demand from the Investor, until the Make Whole Amount shall have been paid in
full to the Investor. As used herein, the Make Whole Amount shall be
an amount equal to the sum of (i) the Draw Down Amount actually paid by the
Investor in respect of such Shares plus (ii) an amount equal to the actual
loss suffered by the Investor in respect of sales to subsequent purchasers,
pursuant to transactions entered into before the Settlement Date, of the Shares
that were required to be delivered by the Company on such Settlement Date, which
shall be based upon documentation reasonably satisfactory to the Company
demonstrating the difference (if greater than zero) between (A) the price
per share paid by the Investor to purchase such number of shares of Common Stock
necessary for the Investor to meet its share delivery obligations to such
subsequent purchasers minus (B) the average Draw Down Discount Price during
the applicable Draw Down Pricing Period in respect of such Settlement
Date.
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(b) Notwithstanding
the foregoing, in the event that the Company is prevented from
delivering Shares in respect of any such Settlement Date in a timely manner by
any fact or circumstance that is not reasonably within the control of, or
directly attributable to, the Company, or is otherwise reasonably within the
control of, or directly attributable to, the Investor, then the Cure Period
shall be automatically extended until such time as such fact or circumstance is
cured. For the purposes of this Section 3.8 facts or circumstances
that are reasonably within the control of the Company include such facts and
circumstances solely attributable to acts or omissions of the Company, its
officers, directors, employees, agents and representatives, including, without
limitation, any transfer agent(s) and/or accountant(s) engaged by the Company in
connection with the Company’s performance of its obligations
hereunder. Notwithstanding anything to the contrary set forth in this
Agreement, in the event that the Company pays the Make Whole Amount in respect
of any Settlement Date in accordance with this Section 3.8, such payment shall
be the Investor’s sole remedy in respect of the Company’s failure to deliver
Shares in respect of such Settlement Date, and the Company shall not be
obligated to deliver such Shares.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby makes the following representations and warranties to the
Investor:
Section
4.1 Organization, Good Standing
and Power. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own, lease and operate
its properties and assets and to carry on its business as now being
conducted. Except as set forth in the Commission Documents (as
defined below), as of the date hereof, the Company does not own more than fifty
percent (50%) of the outstanding capital stock of or control any other business
entity, other than any wholly-owned subsidiary that is not “significant” within
the meaning of Regulation S-X promulgated by the Commission. The
Company is duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, other than those in
which the failure to be so qualified or be in good standing would not have a
Material Adverse Effect.
Section
4.2 Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and the
Warrant and to issue the Shares, the Warrant and the Warrant Shares;
(ii) the execution and delivery of this Agreement and the execution,
issuance and delivery of the Warrant, by the Company and the consummation by it
of the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required (other than as contemplated by Section 6.4); and (iii) this Agreement
has been duly executed and delivered, and the Warrant has been duly executed,
issued and delivered, by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, conservatorship,
receivership, or similar laws relating to, or affecting generally the
enforcement of, creditors’ rights and remedies or indemnification or by other
equitable principles of general application (including any limitation of
equitable remedies).
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Section
4.3 Capitalization. The
authorized capital stock of the Company and the shares thereof issued and
outstanding are set forth in the Commission Documents as of the date specified
therein. All of the outstanding shares of the Common Stock have been
duly and validly authorized and issued, and are fully paid and
non-assessable. Except as set forth in this Agreement, as described
in the Commission Documents or as disclosed on a schedule (the “Disclosure Schedule”)
previously delivered to the Investor, as of December 31, 2009, no shares of
Common Stock were entitled to preemptive rights or registration rights and there
were no outstanding options, warrants, scrip, rights issued by the Company to
subscribe to, call or commitments of any character whatsoever issued by the
Company relating to, or securities or rights convertible into or exchangeable
for or giving any right to subscribe for, any shares of capital stock of the
Company, except for stock options issued by the Company to its employees,
directors and consultants. Except as set forth in this Agreement, the
Commission Documents, or as previously disclosed to the Investor in the
Disclosure Schedule, as of December 31, 2009, there were no contracts,
commitments, understandings, or arrangements by which the Company is or may
become bound to issue additional shares of the capital stock of the Company or
options, securities or rights convertible into or exchangeable for or giving any
right to subscribe for any shares of capital stock of the
Company. Except as described in the Commission Documents or as
previously disclosed to the Investor in the Disclosure Schedule, as of the date
hereof the Company is not a party to any agreement granting registration rights
to any Person with respect to any of its equity or debt
securities. Except as set forth in the Commission Documents or as
previously disclosed to the Investor in the Disclosure Schedule, as of the date
hereof the Company is not a party to, and it has no Knowledge of, any agreement
restricting the voting or transfer of any shares of the capital stock of the
Company. The offer and sale of all capital stock, convertible
securities, rights, warrants, or options of the Company issued during the twelve
month period immediately prior to the Closing complied in all material respects
with all applicable federal and state securities laws, and no stockholder has a
right of rescission or damages with respect thereto that would reasonably be
expected to have a Material Adverse Effect. The Company has furnished
or made available to the Investor true and correct copies of the Company’s
Amended and Restated Certificate of Incorporation, as in effect on the date
hereof (the “Charter”), and the
Company’s Amended and Restated Bylaws, as in effect on the date hereof (the
“Bylaws”).
Section
4.4 Issuance of
Shares. Subject to Section 6.4, the Shares, the Warrant and
the Warrant Shares have been, and any Blackout Shares will be, duly authorized
by all necessary corporate action (except to the extent that the number of
Blackout Shares required to be issued exceeds the number of authorized shares of
Common Stock under the Charter) and, when issued and paid for in accordance with
the terms of this Agreement and the Warrant, and subject to, and in reliance on,
the representations, warranties and covenants made herein by the Investor, the
Shares and the Warrant Shares shall be validly issued and outstanding, fully
paid and non-assessable, and the Investor shall be entitled to all rights
accorded to a holder of shares of Common Stock.
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Section
4.5 No
Conflicts. The execution, delivery and performance of this
Agreement, the Warrant and any other document or instrument contemplated hereby
or thereby, by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and shall not in any
material respect: (i) result in the violation of any provision of the
Charter or Bylaws, (ii) 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 rise to any rights of termination, amendment, acceleration or cancellation
of, any material agreement, mortgage, deed of trust, indenture, note, bond,
license, lease agreement, instrument or obligation to which the Company is a
party and that has not been waived where such default or conflict would
constitute a Material Adverse Effect, (iii) create or impose a lien, charge
or encumbrance on any property of the Company under any agreement or any
commitment to which the Company is a party or by which the Company is bound or
by which any of its respective properties or assets are bound which would
constitute a Material Adverse Effect, (iv) result in a violation of any
federal, state, local or foreign statute, rule, regulation, order, writ,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or any of its subsidiaries or by which any property or
asset of the Company or any of its subsidiaries are bound where such violation
would constitute a Material Adverse Effect, or (v) require any consent of
any third-party that has not been obtained pursuant to any material contract to
which the Company is a party or to which any of its assets, operations or
management may be bound where the failure to obtain any such consent would
constitute a Material Adverse Effect. The Company is not required
under applicable federal, state or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under this Agreement or the Warrant, or issue and sell the
Shares or the Warrant Shares or the Blackout Shares (except to the extent that
the number of Blackout Shares required to be issued exceeds the number of
authorized shares of Common Stock under the Charter) in accordance with the
terms hereof and thereof (other than any filings that the Company may be
required to make with the Commission, the FINRA/NASDAQ or state securities
commissions subsequent to the Closing, and, any registration statement
(including any amendment or supplement thereto) or any other filing or consent
which may be filed pursuant to this Agreement or the Warrant); provided that,
for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Investor herein.
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Section
4.6 Commission Documents,
Financial Statements.
(a) The
Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and since December 31, 2009 the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Commission pursuant to the reporting requirements of the Exchange Act,
including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act
(all of the foregoing, and, for the purpose of determining the Company’s
compliance with Section 7.1 hereof, any such reports, schedules, forms,
statements and other documents filed with the Commission and publicly available
after the date hereof but on or prior to the applicable Condition Satisfaction
Date, including filings incorporated by reference, being referred to herein as
the “Commission
Documents”). Except as previously disclosed to the Investor in
writing or as disclosed in a publicly-available press release of the Company,
since December 31, 2009, the Company has maintained all requirements for the
continued listing or quotation of its Common Stock, and such Common Stock is
currently listed or quoted on the Principal Market. The Company has
made available (including through the Commission’s XXXXX filing system (together
with the successor interactive data filing system, “IDEA”)) to the Investor true
and complete copies of the Commission Documents filed with the Commission since
December 31, 2009 and prior to the Closing Date. The Company has not
provided to the Investor any information which, according to applicable law,
rule or regulation, should have been disclosed publicly by the Company but which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of the date it was filed with the
Commission, the Company’s Annual Report on Form 10-K for the year ended December
31, 2009 complied in all material respects with the requirements of the Exchange
Act and the rules and regulations of the Commission promulgated thereunder
then-applicable to such document, and, as of the date it was filed with the
Commission, after giving effect to the information disclosed and incorporated by
reference therein, to the Company’s Knowledge such Annual Report on Form 10-K
did not 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. As of their respective dates, to the Company’s
Knowledge the financial statements, together with the related notes and
schedules thereto, of the Company included in the Commission Documents filed
with the Commission since December 31, 2009 complied as to form in all material
respects with all then-applicable accounting requirements and the published
rules and regulations of the Commission or other then-applicable rules and
regulations with respect thereto. Such financial statements, together
with the related notes and schedules thereto, have been prepared in accordance
with generally accepted accounting principles (“GAAP”) applied on a
consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements), and fairly present in all material
respects the financial condition of the Company and its subsidiaries as of the
dates thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(b) The
Company has timely filed with the Commission and made available to the Investor
via IDEA or otherwise all certifications and statements required by (x) Rule
13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350
(Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (“SOXA”)) with respect
to all relevant Commission Documents. The Company is in compliance in
all material respects with the provisions of SOXA applicable to it as of the
date hereof. The Company maintains disclosure controls and procedures
required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. As
used in this Section 4.6(b), the term “file” shall be broadly construed to
include any manner in which a document or information is furnished, supplied or
otherwise made available to the Commission.
Section
4.7 No Material Adverse
Change. Except as disclosed in the Commission Documents, as
previously disclosed to the Investor in the Disclosure Schedule or as disclosed
in a publicly available press release of the Company, since December 31, 2009 no
event or series of events has or have occurred that would, individually or in
the aggregate, have a Material Adverse Effect.
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Section
4.8 No Undisclosed
Liabilities. To the Company’s Knowledge, neither the Company
nor any of its subsidiaries has any liabilities, obligations, claims or losses
(whether liquidated or unliquidated, secured or unsecured, absolute, accrued,
contingent or otherwise) that would be required to be disclosed on a balance
sheet of the Company or any subsidiary (including the notes thereto) in
conformity with GAAP and are not disclosed in the Commission Documents, other
than those incurred in the ordinary course of the Company’s or its subsidiaries
respective businesses since December 31, 2009 or which, individually or in the
aggregate, do not or would not have a Material Adverse Effect.
Section
4.9 No Undisclosed Events or
Circumstances. To the Company’s Knowledge, no event or
circumstance has occurred or exists with respect to the Company or its
subsidiaries or their respective businesses, properties, operations or financial
condition, which, under applicable law, rule or regulation, requires public
disclosure or announcement by the Company but which has not been so publicly
announced or disclosed and which, individually or in the aggregate, would have a
Material Adverse Effect.
Section
4.10 Actions
Pending. There is no action, suit, claim, investigation or
proceeding pending or, to the Knowledge of the Company, threatened against the
Company or any subsidiary which questions the validity of this Agreement or the
transactions contemplated hereby or any action taken or to be taken pursuant
hereto or thereto. Except as set forth in the Commission Documents or
in the Disclosure Schedule, there is no action, suit, claim, investigation or
proceeding pending or, to the Knowledge of the Company, threatened, against or
involving the Company, any subsidiary or any of their respective properties or
assets, or to the Knowledge of the Company involving any officers or directors,
in their capacity as officers or directors, of the Company or any of its
subsidiaries, including, without limitation, any securities class action lawsuit
or stockholder derivative lawsuit, that would be reasonably expected to have a
Material Adverse Effect. Except as set forth in the Commission
Documents or as previously disclosed to the Investor in writing, no judgment,
order, writ, injunction or decree or award has been issued by or, to the
Knowledge of the Company, requested of any court, arbitrator or governmental
agency which would be reasonably expected to result in a Material Adverse
Effect.
Section
4.11 Compliance with
Law. The business of the Company and its subsidiaries has been
and is presently being conducted in accordance with all applicable federal,
state, local and foreign governmental laws, rules, regulations and ordinances,
except as set forth in the Commission Documents or such that would not
reasonably be expected to cause a Material Adverse Effect. Except as
set forth in the Commission Documents, each of the Company and its subsidiaries
have all franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals necessary for the conduct of their
respective businesses as now being conducted by them, except for such
franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals, the failure to possess which, individually or in
the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
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Section
4.12 Operation of
Business.
(a) The
Company or one or more of its Subsidiaries possesses such permits, licenses,
approvals, consents and other authorizations (including licenses, accreditation
and other similar documentation or approvals of any local health departments)
(collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies, including, without limitation, the United States
Food and Drug Administration (“FDA”), necessary to
conduct the business now operated by it, except where the failure to possess
such Governmental Licenses, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect or as otherwise
disclosed in the Commission Documents. The Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses and all applicable FDA rules and regulations, guidelines
and policies, and all applicable rules and regulations, guidelines and policies
of any governmental authority exercising authority comparable to that of the FDA
(including to the extent applicable any non-governmental authority whose
approval or authorization is required under foreign law comparable to that
administered by the FDA), except where the failure to so comply, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect or as otherwise disclosed in the Commission Documents. To the
Knowledge of the Company, all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect or as otherwise disclosed in the Commission
Documents. As to each product that is subject to FDA regulation or
similar legal provisions in any foreign jurisdiction that is developed,
manufactured, tested, packaged, labeled, marketed, sold, distributed and/or
commercialized by the Company or any of its Subsidiaries, each such product is
being developed, manufactured, tested, packaged, labeled, marketed, sold,
distributed and/or commercialized in compliance with all applicable requirements
of the FDA (and to the extent applicable any non-governmental authority whose
approval or authorization is required under foreign law comparable to that
administered by the FDA), except where such non-compliance, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect or as otherwise disclosed in the Commission Documents. Except
as set forth in the Commission Documents or the Registration Statement, neither
the Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses or
relating to a potential violation of, failure to comply with, or request to
produce additional information under, any FDA rules and regulations, guidelines
or policies which, if the subject of any unfavorable decision, ruling or
finding, individually or in the aggregate, would have a Material Adverse
Effect.
(b) The
Company or one or more of its Subsidiaries owns or possesses adequate patents,
patent rights, licenses, inventions, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names, trade dress, logos,
copyrights and other intellectual property, including, without limitation, all
of the intellectual property described in the Commission Documents as being
owned or licensed by the Company (collectively, “Intellectual
Property”), necessary to carry on the business now operated by it, except
where the failure to own or possess such Intellectual Property would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. Except as set forth in the Commission Documents,
there are no actions, suits or judicial proceedings pending, or to the Company’s
Knowledge threatened in writing, relating to patents or proprietary information
to which the Company or any of its Subsidiaries is a party or of which any
property of the Company or any of its Subsidiaries is subject, and, to the
Company’s Knowledge, neither the Company nor any of its Subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which could render any Intellectual Property invalid
or inadequate to protect the interest of the Company and its Subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
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(c) All
material clinical trials conducted by, or on behalf of, the Company or any of
its Subsidiaries, or in which the Company or any of its Subsidiaries has
participated that are described in the Commission Documents, or the results of
which are referred to in the Commission Documents, if any, are the only clinical
trials currently being conducted by or on behalf of the Company and its
Subsidiaries. All such clinical trials conducted, supervised or
monitored by, or on behalf of, the Company or any of its Subsidiaries, to the
Knowledge of the Company, have been conducted in all material respects in
compliance with all applicable federal, state, local and foreign laws, and the
regulations and requirements of any applicable governmental entity, including,
but not limited to, FDA good clinical practice and good laboratory practice
requirements. Except as set forth in the Commission Documents,
neither the Company nor any of its Subsidiaries has received any notices or
correspondence from the FDA or any other governmental agency requiring the
termination or suspension of any clinical trials conducted by, or on behalf of,
the Company or any of its Subsidiaries or in which the Company or any of its
Subsidiaries has participated that are described in the Commission Documents, if
any, or the results of which are referred to in the Commission
Documents. To the Knowledge of the Company, all clinical trials
previously conducted by, or on behalf of, the Company or any of its Subsidiaries
while conducted by or on behalf of the Company or any of its Subsidiaries, were
conducted in all material respects in compliance with all then-applicable
federal, state, local and foreign laws, and the regulations and requirements of
any applicable governmental entity, including, but not limited to, FDA good
clinical practice and good laboratory practice requirements, except as set forth
in the Commission Documents.
Section
4.13 Certain
Fees. Except as expressly set forth in this Agreement, no
brokers, finders or financial advisory fees or commissions will be payable by
the Company or any of its subsidiaries in respect of the transactions
contemplated by this Agreement.
Section
4.14 Disclosure. To
the Company’s Knowledge, neither this Agreement nor any other documents,
certificates or instruments furnished to the Investor by or on behalf of the
Company or any subsidiary in connection with the transactions contemplated by
this Agreement contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made herein or
therein, in the light of the circumstances under which they were made herein or
therein, not misleading.
Section
4.15 Material Non-Public
Information. Except for this Agreement and the transactions
contemplated hereby and the Disclosure Schedule, neither the Company nor its
employees have disclosed to the Investor, any material non-public information
that, according to applicable law, rule or regulation, should have been
disclosed publicly by the Company prior to the date hereof but which has not
been so disclosed.
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Section
4.16 Acknowledgment Regarding
Investor’s Purchase of Shares. The Company acknowledges and
agrees that the Investor is acting solely in the capacity of an arm’s length
investor with respect to this Agreement and the transactions contemplated
hereunder. The Company further acknowledges that the Investor is not
acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions contemplated
hereunder and any advice given by the Investor or any of its representatives or
agents in connection with this Agreement and the transactions contemplated
hereunder is merely incidental to the Investor’s purchase of the
Shares.
ARTICLE
V
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR
The
Investor hereby makes the following representations, warranties and covenants to
the Company:
Section
5.1 Organization and Standing of
the Investor. The Investor is a company duly organized,
validly existing and in good standing under the laws of the British Virgin
Islands.
Section
5.2 Authorization and
Power. The Investor has the requisite power and authority to
enter into and perform its obligations under this Agreement and to purchase the
Shares, any Blackout Shares, the Warrant and the Warrant Shares in accordance
with the terms hereof. The execution, delivery and performance of
this Agreement and the Warrant by Investor and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action, and no further consent or authorization of the
Investor, its Board of Directors or stockholders is required. This
Agreement has been duly executed and delivered by the Investor and constitutes a
valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership, or similar laws relating to, or affecting
generally the enforcement of creditor’s rights and remedies or indemnification
or by other equitable principles of general application (including any
limitation of equitable remedies).
Section
5.3 No
Conflicts. The execution, delivery and performance of this
Agreement, the Warrant and any other document or instrument contemplated hereby,
by the Investor and the consummation of the transactions contemplated hereby and
thereby do not (i) violate any provision of the Investor’s charter
documents or bylaws, (ii) 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 of, any material agreement, mortgage, deed of trust, indenture,
note, bond, license, lease agreement, instrument or obligation to which the
Investor is a party, (iii) create or impose a lien, charge or encumbrance
on any property of the Investor under any agreement or any commitment to which
the Investor is a party or by which the Investor is bound or by which any of its
respective properties or assets are bound, (iv) result in a violation of
any federal, state, local or foreign statute, rule, regulation, order, writ,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Investor or by which any property or asset of the Investor are
bound or affected, or (v) require the consent of any third-party that has
not been obtained pursuant to any material contract to which Investor is subject
or to which any of its assets, operations or management may be
subject. The Investor is not required under applicable federal,
state, foreign or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or to purchase or acquire the Shares, the
Warrant, the Warrant Shares or any Blackout Shares in accordance with the terms
hereof, provided that, for purposes of the representation made in this sentence,
the Investor is assuming and relying upon the accuracy of the relevant
representations and agreements of the Company herein.
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Section
5.4 Financial
Capability. The Investor has the financial capability to
perform all of its obligations under this Agreement, including the capability to
purchase the Shares, the Warrant, the Warrant Shares and any Blackout Shares in
accordance with the terms hereof. The Investor has such knowledge and
experience in business and financial matters that it is capable of evaluating
the merits and risks of an investment in Common Stock and the
Warrant. The Investor is an “accredited investor”
as defined in Regulation D promulgated under the Securities
Act. The Investor is a “sophisticated
investor” as described in Rule 506(b)(2)(ii) of Regulation
D. The Investor acknowledges that an investment in the Common Stock
is speculative and involves a high degree of risk.
Section
5.5 Information. The
Investor and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares, any Blackout Shares, the Warrant
and the Warrant Shares which have been requested by the Investor. The
Investor has reviewed or received copies of the Commission
Documents. The Investor and its advisors, if any, have been afforded
the opportunity to ask questions of the Company. The Investor 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, any Blackout Shares, the Warrant and the Warrant Shares. The
Investor understands that it (and not the Company) shall be responsible for its
own tax liabilities that may arise as a result of this investment or the
transactions contemplated by this Agreement.
Section
5.6 Trading
Restrictions. The Investor covenants that during the
Commitment Period, neither the Investor nor any of its affiliates nor any entity
managed or controlled by the Investor will (i) enter into or execute or cause or
assist any Person to enter into or execute any “short sale” (as such
term is defined in Rule 200 of Regulation SHO, or any successor regulation,
promulgated by the Commission under the Exchange Act) of any securities of the
Company, and that the Investor and its affiliates shall comply with all other
applicable securities laws (including Regulation M), provided, however, that, for the avoidance
of doubt, the Investor may sell during any Draw Down Pricing Period up to that
number of shares of Common Stock that it is unconditionally entitled to purchase
and receive from the Company in respect of such Draw Down Pricing Period in
compliance with applicable securities laws.
Section
5.7 Not an
Affiliate. The Investor is not an officer, director or “affiliate” (as
defined in Rule 405 of the Securities Act) of the Company.
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Section
5.8 Prospectus
Delivery. The Investor agrees that unless the Shares, the
Warrant Shares or any Blackout Shares are eligible for resale pursuant to all
the conditions of Rule 144, it will resell the Shares, the Warrant Shares and
any Blackout Shares only pursuant to the Registration Statement, in a manner
described under the caption “Plan of Distribution”
in the Registration Statement, and in a manner in compliance with all applicable
securities laws, including, without limitation, any applicable prospectus
delivery requirements of the Securities Act and the xxxxxxx xxxxxxx restrictions
of the Exchange Act; provided that in no event shall the Company be under any
obligation to the Investor to supplement the Prospectus to reflect the issuance
of any Shares pursuant to a Draw Down at any time prior to the day following the
last Settlement Date with respect to such Draw Down.
ARTICLE
VI
COVENANTS
OF THE COMPANY
The
Company covenants with the Investor as follows, which covenants are for the
benefit of the Investor and its permitted assignees (as defined
herein):
Section
6.1 Securities
Compliance. The Company shall notify the Commission and the
Principal Market, if and as applicable, in accordance with their respective
rules and regulations, of the transactions contemplated by this Agreement, and
shall use commercially reasonable efforts to take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Shares and the Warrant
Shares and the Blackout Shares, if any, to the Investor. Each
Commission Document to be filed with the Commission after the Closing Date and
incorporated by reference in the Registration Statement and Prospectus, when
such document becomes effective or is filed with the Commission, as the case may
be, shall comply in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and other federal, state and
local laws, rules and regulations applicable to it, and shall not 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.
Section
6.2 Reservation of Common
Stock. As of the date hereof, the Company has available and
the Company shall reserve and keep available at all times, free of preemptive
rights and other similar contractual rights of stockholders, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligation to issue
the Shares in connection with all Draw Downs contemplated hereunder and the
Warrant Shares. The number of shares so reserved from time to time,
as theretofore increased or reduced as hereinafter provided, may be reduced by
the number of shares actually delivered hereunder, or as otherwise agreed by the
parties in writing.
Section
6.3 Registration and
Listing. During the Commitment Period, the Company shall use
commercially reasonable efforts to: (i) take all action necessary to cause its
Common Stock to continue to be registered under Section 12(b) or 12(g) of the
Exchange Act, (ii) comply in all material respects with its reporting and filing
obligations under the Exchange Act, (iii) prevent the termination or suspension
of such registration, or the termination or suspension of its reporting and
filing obligations under the Exchange Act or Securities Act (except as expressly
permitted herein). The Company shall use commercially reasonable
efforts to maintain the listing and trading of its Common Stock and the listing
of the Shares purchased by Investor hereunder on the Principal Market
(including, without limitation, maintaining sufficient net tangible assets) and
will comply in all material respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of the FINRA and the Principal
Market. The Company will not be required to carry out any action
pursuant to this Agreement or the Warrant that would adversely impact the
listing of the Company’s securities on the Principal Market, which Principal
Market may be changed by the Company in the future in the Company’s
discretion.
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Section
6.4 Compliance with
Laws.
(a) The
Company shall comply, and cause each subsidiary to comply, with all applicable
laws, rules, regulations and orders, noncompliance with which would reasonably
be expected to have a Material Adverse Effect. Without limiting the
generality of the foregoing, neither the Company nor any of its officers,
directors or affiliates will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company,
or which would in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company, in
each case in contravention of applicable laws, rules, regulations or
orders.
(b) Without
the consent of its stockholders in accordance with FINRA rules and regulations
and the rules and regulations of the NASDAQ Capital Market and the Principal
Market (if different), the Company will not be obligated to issue, and the
Investor will not be obligated to purchase, any Shares or Blackout Shares which
would otherwise result in the issuance under this Agreement and the Warrant of
Shares, Warrant Shares and Blackout Shares (collectively) representing more than
the applicable percentage under the rules of the FINRA, NASDAQ Capital Market
and Principal Market (if different), including, without limitation, NASDAQ
Listing Rule 5635(d), that would require stockholder approval of the issuance
thereof. Nothing herein shall compel the Company to seek such consent
of its stockholders. In addition, the Company will not be obligated
to issue, and the Investor will not be obligated to purchase, any Shares,
Warrant Shares or Blackout Shares if as a result of the acquisition of such
Shares and/or Warrant Shares and/or Blackout Shares, the Company would be
required to file any notification or report forms under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended. Nothing herein shall
compel the Company to file such notification and report forms.
Section
6.5 Other
Financing. Nothing in this Agreement shall be construed to
restrict the right of the Company to offer, sell and/or issue securities of any
kind whatsoever, provided such transaction is not a Prohibited Transaction (as
defined below) (any such transaction that is not a Prohibited Transaction is
referred to in this Agreement as a “Permitted
Transaction”). Without limiting the generality of the
preceding sentence, the Company may, without the prior written consent of the
Investor, (i) establish stock option, stock purchase, stock bonus or other
equity incentive or award plans or agreements (for directors, employees,
consultants and/or advisors), and issue securities thereunder, and amend such
plans or agreements, including increasing the number of shares available
thereunder, (ii) issue equity securities to finance, or otherwise in connection
with, the acquisition, license or sale of one or more other companies,
equipment, technologies or lines of business, (iii) issue shares of Common Stock
and/or other securities in connection with the Company’s option, equity
incentive or award plans, stock purchase plans, stock bonus programs, rights
plans, warrants or options, (iv) issue shares of Common Stock and/or other
securities in connection with the acquisition, license or sale of products,
licenses, equipment or other assets and strategic collaborations, partnerships,
joint ventures or similar transactions; (v) issue shares of Common and/or other
securities to employees, consultants and/or advisors as consideration for
services rendered or to be rendered, (vi) issue and sell equity or debt
securities in a public offering, (vii) issue and sell any equity or debt
securities in a private placement (other than in connection with any Prohibited
Transaction), (viii) issue equity securities to equipment lessors, equipment
vendors, banks or similar lending institutions in connection with leases or
loans, or in connection with strategic, commercial or licensing transactions,
including without limitation in connection with the Company’s
current loan, or any future strategic, commercial or licensing
transactions with, PharmaBio Development, Inc., (ix) issue securities in
connection with any stock split, stock dividend, recapitalization,
reclassification or similar event by the Company and (x) issue shares of Common
Stock to the Investor under any other agreement entered into between the
Investor and the Company.
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Section
6.6 Prohibited
Transactions. Except as set forth on Schedule 6.6 of the
Disclosure Schedule and except as permitted by Section 6.5, during the term of
this Agreement, the Company shall not enter into any Prohibited Transaction
without the prior written consent of the Investor, which consent may be withheld
at the sole discretion of the Investor. For the purposes of this
Agreement, the term “Prohibited
Transaction” shall refer to the issuance by the Company of any “future
priced securities,” which shall mean the issuance of shares of Common Stock or
securities of any type whatsoever that are, or may become, convertible or
exchangeable into shares of Common Stock where the purchase, conversion or
exchange price for such Common Stock is determined using any floating discount
or other post-issuance adjustable discount to the market price of Common Stock,
including, without limitation, pursuant to any equity line or other committed
equity financing, including, without limitation, any financing that is
substantially similar to the financing provided for under this Agreement,
provided that any
future issuance by the Company of (i) a convertible security (“Convertible
Security”) that (A) contains provisions that adjust the conversion price
of such Convertible Security in the event of stock splits, dividends,
distributions, reclassifications or similar events or pursuant to anti-dilution
provisions or (B) is issued in connection with the Company obtaining debt
financing to support research and development activities where the
issuance of Convertible Securities is conditioned upon or otherwise related to
the Company meeting certain defined development milestones, (ii) securities
in a registered direct public offering or an unregistered private placement
where the price per share of such securities is fixed concurrently with the
execution of definitive documentation relating to the offering or placement, as
applicable and (iii) securities issued in connection with a secured debt
financing, shall not be a Prohibited Transaction.
Section
6.7 Corporate
Existence. The Company shall take all steps necessary to
preserve and continue the corporate existence of the Company.
Section
6.8 Non-Disclosure of Non-Public
Information. Subject to Section 6.9 below, except as otherwise
expressly provided in this Agreement or the Warrant, none of the Company, its
officers, directors, employees nor agents shall disclose material non-public
information to the Investor, its advisors or representatives.
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Section
6.9 Notice of Certain Events
Affecting Registration; Suspension of Right to Request a Draw
Down. The Company shall promptly notify the Investor upon the
occurrence of any of the following events in respect of the Registration
Statement or the Prospectus related to the offer, issuance and sale of the
Shares and the Warrant Shares hereunder: (i) receipt of any request for material
additional information by the Commission or any other federal or state
governmental authority or for amendments or supplements to the Registration
Statement or the Prospectus during the period of effectiveness of the
Registration Statement; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose; and (iii) receipt of any notification with respect to the suspension of
the qualification or exemption from qualification of any of any capital
securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration Statement,
the Company shall use commercially reasonable efforts to obtain the withdrawal
of such order at the earliest possible time. The Company shall not be
required to disclose to the Investor the substance or specific reasons of any of
the events set forth in clauses (i) through (iii) of the first sentence of this
Section 6.9, only that the event has occurred. The Company shall not
request a Draw Down during the continuation of any of the foregoing
events.
Section
6.10 Amendments to the
Registration Statement. The Company shall not file any
amendment to the Registration Statement or make any amendment or supplement to
the Prospectus (to the extent related to the sale of Shares hereunder) of which
the Investor shall not have been previously or be simultaneously advised;
provided, however, that the Company may, to the extent it deems advisable, and
without the prior consent of or notice to the Investor, supplement the
Prospectus within two (2) Trading Days following the Settlement Date for each
Draw Down solely to reflect the issuance of Shares with respect to such Draw
Down; and provided further that the Company need not advise the Investor
regarding any supplement the purpose of which is to update the Registration
Statement and the Prospectus to include information the Company has previously
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
and (b) so long as, in the reasonable opinion of counsel for the Investor, a
Prospectus is required to be delivered in connection with sales of the Shares by
the Investor, if the Company files any information, documents or reports that
are incorporated by reference in the Registration Statement pursuant to the
Exchange Act, the Company shall, if requested in writing by the Investor,
deliver a copy of such information, documents or reports to the Investor
promptly following such filing to the extent such information, documents or
reports are not available on the Commission’s IDEA filing system.
Section
6.11 Prospectus
Delivery. From time to time for such period as in the
reasonable opinion of counsel for the Investor a prospectus is required by the
Securities Act to be delivered in connection with sales by the Investor, the
Company will expeditiously deliver to the Investor, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto related to
sales by the Investor) as the Investor may reasonably request. The
Company consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Securities Act and
state securities laws in connection with the offering and sale of the Shares and
the Warrant Shares and for such period of time thereafter as the Prospectus is
required by the Securities Act to be delivered in connection with sales of the
Shares and the Warrant Shares. Notwithstanding the foregoing, in no
event shall the Company be under any obligation to the Investor to supplement
the Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at
any time prior to the day following the last Settlement Date with respect to
such Draw Down.
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ARTICLE
VII
CONDITIONS
TO THE OBLIGATION OF THE INVESTOR
TO
ACCEPT A DRAW DOWN
The
obligation of the Investor hereunder to accept a Draw Down Notice and to acquire
and pay for the Shares in accordance therewith is subject to the satisfaction or
waiver, at each Condition Satisfaction Date, of each of the conditions set forth
below. Other than those conditions set forth in Section 7.12, which
are for the Company’s sole benefit and may be waived by the Company at any time
in its sole discretion, the conditions are for the Investor’s sole benefit and
may be waived by the Investor at any time in its sole discretion. As
used in this Agreement, the term “Condition Satisfaction
Date” shall mean, with respect to each Draw Down, the date on which the
applicable Draw Down Notice is delivered to the Investor and each Settlement
Date.
Section
7.1 Accuracy of the Company’s
Representations and Warranties. Each of the representations
and warranties of the Company shall be true and correct in all material respects
as of the date when made as though made at that time except for representations
and warranties that are expressly made as of a particular date.
Section
7.2 Performance by the
Company. The Company shall have, in all material respects,
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement and the Warrant to be performed, satisfied or
complied with by the Company on or prior to the applicable Condition
Satisfaction Date.
Section
7.3 Compliance with
Law. The Company shall have complied in all respects with all
applicable federal, state and local governmental laws, rules, regulations and
ordinances in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby except
for any failures to so comply which would not be reasonably expected to have a
Material Adverse Effect.
Section
7.4 Effective Registration
Statement. The Registration Statement shall have previously
become effective and shall remain effective and (i) neither the Company nor the
Investor shall have received notice that the Commission has issued or intends to
issue a stop order with respect to the Registration Statement or that the
Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or intends or has
threatened to do so (unless the Commission’s concerns have been addressed and
the Investor is reasonably satisfied that the Commission no longer is
considering or intends to take such action), and (ii) no other suspension of the
use or withdrawal of the effectiveness of the Registration Statement or the
Prospectus shall exist.
Section
7.5 No
Knowledge. The Company shall have no Knowledge of any event
that could reasonably be expected to have the effect of causing the Registration
Statement with respect to the sale of the Shares to be suspended or otherwise
ineffective (which event is reasonably likely to occur within eight Trading Days
following the Trading Day on which a Draw Down Notice is delivered) as of the
Settlement Date.
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Section
7.6 No
Suspension. Trading in the Company’s Common Stock shall not
have been suspended by the Commission, the Principal Market or the FINRA and
trading in securities generally as reported on the Principal Market shall not
have been suspended or limited as of the Condition Satisfaction
Date.
Section
7.7 No
Injunction. No statute, rule, regulation, order, decree, writ,
ruling or injunction shall have been enacted, entered, promulgated, endorsed or,
to the Knowledge of the Company, threatened by any court or governmental
authority of competent jurisdiction which prohibits the consummation of or which
would materially modify or delay any of the transactions contemplated by this
Agreement.
Section
7.8 No Proceedings or
Litigation. No action, suit or proceeding before any
arbitrator or any court or governmental authority shall have been commenced or,
to the Knowledge of the Company, threatened, and, to the Knowledge of the
Company no inquiry or investigation by any governmental authority shall have
been threatened, against the Company or any subsidiary, or any of the officers,
directors or affiliates of the Company or any subsidiary, seeking to enjoin,
prevent or change the transactions contemplated by this Agreement, or seeking
material damages in connection with such transactions, except for any action,
suit or proceeding that would not reasonably be expected to have a Material
Adverse Effect.
Section
7.9 Sufficient Shares Registered
for Sale. The Company shall have sufficient Shares, calculated
using the Closing Price of the Common Stock as of the Trading Day immediately
preceding the applicable Draw Down Notice, registered under the Registration
Statement to issue and sell such Shares in accordance with such Draw Down
Notice.
Section
7.10 Payment of Fees and
Expenses. The Company shall be current on any and all invoices
submitted to the Company in respect of fees and expenses of the Investor
provided for in Section 10.1 hereof, except for such fees, or portion thereof,
that the Company disputes in good faith, provided that such invoices were
submitted to the Company not less than twenty (20) Trading Days prior to
delivery of the applicable Draw Down Notice.
Section
7.11 Opinion of
Counsel. Prior to receipt of the first Draw Down Notice, the
Investor shall have received an opinion of counsel to the Company mutually
agreed upon between the parties.
Section
7.12 Accuracy of Investor’s
Representations and Warranties. The representations and
warranties of the Investor shall be true and correct in all material respects as
of the date when made as though made at that time except for representations and
warranties that are expressly made as of a particular date.
ARTICLE
VIII
TERMINATION
Section
8.1 Term. Unless
otherwise terminated in accordance with Section 8.2 below, this Agreement shall
terminate upon the earlier to occur of (i) the expiration of the Commitment
Period or (ii) the issuance of Shares pursuant to this Agreement in an amount
equal to the Maximum Commitment Amount.
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Section
8.2 Other Termination; Blackout
Periods.
(a) The
Investor may terminate this Agreement upon (x) one (1) Trading Day’s notice if
the Company enters into any Prohibited Transaction as set forth in Section 6.6
without the Investor’s prior written consent, or (y) one (1) Trading Day’s
notice if the Investor provides written notice of a Material Adverse Effect to
the Company, and such Material Adverse Effect continues for a period of ten (10)
Trading Days after the receipt by the Company of such notice.
(b) The
Company may terminate this Agreement upon one (1) Trading Day’s notice;
provided, however, that the Company shall not terminate this Agreement pursuant
to this Section 8.2(c) during any Draw Down Pricing Period; provided further,
that, in the event of any termination of this Agreement by the Company pursuant
to this Section 8.2(c), so long as the Investor owns Shares purchased hereunder,
unless all of such shares of Common Stock may be sold by the Investor without
registration and without any time, volume or manner limitations pursuant to Rule
144(b) (or any similar provision then in effect) under the Securities Act, the
Company shall not suspend or withdraw the Registration Statement or otherwise
cause the Registration Statement to become ineffective, or voluntarily delist
the Common Stock from, the Principal Market without listing the Common Stock on
another Principal Market.
(c) Each
of the parties hereto may terminate this Agreement upon one (1) Trading Day’s
notice if the other party has breached a material representation, warranty or
covenant to this Agreement and such breach is not remedied within ten (10)
Trading Days after notice of such breach is delivered to the breaching
party.
(d) If,
in the good faith judgment of the Company, following consultation with legal
counsel, it would be detrimental to the Company or its stockholders for sales of
securities of the Company to be made pursuant to the Registration Statement due
to (i) the existence of a material development or potential material development
involving the Company that the Company would be obligated to disclose or
incorporate by reference in the Registration Statement and which the Company has
not disclosed, or which disclosure would be premature or otherwise inadvisable
at such time or would have a Material Adverse Effect on the Company or its
stockholders, or (ii) a filing of a Company-initiated registration of any class
of its equity securities would adversely affect or require premature disclosure
of such material development or potential material development (the Company’s
notice thereof, a “Blackout Notice”),
the Company shall have the right to suspend use of such Registration Statement
for a period of not more than thirty (30) days (any such deferral or suspension
period, a “Blackout
Period”). The Investor acknowledges that it would be seriously
detrimental to the Company and its stockholders for the Registration Statement
to remain in effect during a Blackout Period and therefore essential to suspend
the use thereof during such Blackout Period and agrees to cease any disposition
of the Shares under the Registration Statement during such Blackout
Period. The Company may not exercise any of its rights under this
section to suspend the effectiveness of the Registration Statement more than six
(6) times in any twelve (12) month period. In the event that, within
five (5) Trading Days following any Settlement Date, the Company gives a
Blackout Notice to the Investor and the VWAP on the Trading Day immediately
preceding such Blackout Period (“Old VWAP”) is greater
than the VWAP on the first Trading Day following such Blackout Period that the
Investor may sell its Shares pursuant to an effective Registration Statement
(“New VWAP”),
then the Company shall pay to the Investor, by wire transfer of immediately
available funds to an account designated by the Investor, the “Blackout
Amount.” For the purposes of this Agreement, Blackout Amount
means the product of (i) the number of Shares purchased by the Investor pursuant
to the most recent Draw Down and actually held by the Investor (and not
otherwise sold, hypothecated or transferred) immediately prior to the Blackout
Period and (ii) the result, if greater than zero, obtained by subtracting the
New VWAP from the Old VWAP; provided, however, that no Blackout Amount shall be
payable in respect of Shares (x) that are otherwise freely tradable by the
Investor, including under Rule 144, during the Blackout Period or (y) if the
Company offers to repurchase from the Investor such Shares for a per share
purchase price equal to the VWAP on the Trading Day immediately preceding the
day on which any such Blackout Period began. For any Blackout Period
in respect of which a Blackout Amount becomes due and payable, rather than
paying the Blackout Amount, the Company may at its sole discretion, issue to the
Investor shares of Common Stock with an aggregate market value determined as of
the first Trading Day following such Blackout Period equal to the Blackout
Amount (“Blackout
Shares”).
- 26
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Section
8.3 Effect of
Termination. In the event of termination by the Company or the
Investor, written notice thereof shall forthwith be given to the other party and
the transactions contemplated by this Agreement shall be terminated without
further action by either party. If this Agreement is terminated as
provided in Section 8.1 or 8.2 herein, this Agreement shall become void and of
no further force and effect, except as provided in Section
10.13. Nothing in this Section 8.3 shall be deemed to release the
Company or the Investor from any liability for any breach under this Agreement
occurring prior to such termination, or to impair the rights of the Company and
the Investor to compel specific performance by the other party of its
obligations under this Agreement arising prior to such termination.
ARTICLE
IX
INDEMNIFICATION
Section
9.1 Indemnification.
(a) Except
as otherwise provided in this Article IX, unless disputed as set forth in
Section 9.2, the Company agrees to indemnify, defend and hold harmless the
Investor and its affiliates and their respective officers, directors, agents,
employees, subsidiaries, partners, members and controlling persons (each, an
“Investor Indemnified
Party”), to the fullest extent permitted by law from and against any and
all Damages directly resulting from or directly arising out of any breach of any
representation or warranty, covenant or agreement (except as otherwise
specifically provided) by the Company in this Agreement; provided, however, that
the Company shall not be liable under this Article IX to an Investor Indemnified
Party to the extent that such Damages resulted or arose from the breach by an
Investor Indemnified Party of any representation, warranty, covenant or
agreement of an Investor Indemnified Party contained in this Agreement, or the
negligence, recklessness, willful misconduct or bad faith of an Investor
Indemnified Party. The parties intend that any Damages subject to
indemnification pursuant to this Article IX will be net of insurance proceeds
(which the Investor agrees to use commercially reasonable efforts to recover or
to cause any Investor Indemnified Party to recover). Accordingly, the
amount which the Company is required to pay to any Investor Indemnified Party
hereunder (a “Company
Indemnity Payment”) will be reduced by any insurance proceeds actually
recovered by or on behalf of any Investor Indemnified Party in reduction of the
related Damages. In addition, if an Investor Indemnified Party
receives a Company Indemnity Payment required by this Article IX in respect of
any Damages and subsequently receives any such insurance proceeds, then the
Investor will pay, or will cause such other Investor Indemnified Party to pay,
to the Company an amount equal to the Company Indemnity Payment received less
the amount of the Company Indemnity Payment that would have been due if the
insurance proceeds had been received, realized or recovered before the Company
Indemnity Payment was made.
- 27
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(b) Except
as otherwise provided in this Article IX, unless disputed as set forth in
Section 9.2, the Investor agrees to indemnify, defend and hold harmless the
Company and its affiliates and their respective officers, directors, agents,
employees, subsidiaries, partners, members and controlling persons (each, a
“Company Indemnified
Party”), to the fullest extent permitted by law from and against any and
all Damages directly resulting from or directly arising out of any breach of any
representation or warranty, covenant or agreement by the Investor in this
Agreement; provided, however, that the Investor shall not be liable under this
Article IX to a Company Indemnified Party to the extent that such Damages
resulted or arose from the breach by a Company Indemnified Party of any
representation, warranty, covenant or agreement of a Company Indemnified Party
contained in this Agreement or the negligence, recklessness, willful misconduct
or bad faith of a Company Indemnified Party. The parties intend that
any Damages subject to indemnification pursuant to this Article IX will be net
of insurance proceeds (which the Company agrees to use commercially reasonable
efforts to recover or to cause any Company Indemnified Party to
recover). Accordingly, the amount which the Investor is required to
pay to any Company Indemnified Party hereunder (an “Investor Indemnity
Payment”) will be reduced by any insurance proceeds theretofore actually
recovered by or on behalf of any Company Indemnified Party in reduction of the
related Damages. In addition, if a Company Indemnified Party receives
an Investor Indemnity Payment required by this Article IX in respect of any
Damages and subsequently receives any such insurance proceeds, then the Company
Indemnified Party will pay, or will cause such other Company Indemnified Party
to pay, to the Investor an amount equal to the Investor Indemnity Payment
received less the amount of the Investor Indemnity Payment that would have been
due if the insurance proceeds had been received, realized or recovered before
the Investor Indemnity Payment was made.
Section
9.2 Notification of Claims for
Indemnification. Each party entitled to indemnification under
this Article IX (an “Indemnified Party”)
shall, promptly after the receipt of notice of the commencement of any claim
against such Indemnified Party in respect of which indemnity may be sought from
the party obligated to indemnify such Indemnified Party under this Article IX
(the “Indemnifying
Party”), notify the Indemnifying Party in writing of the commencement
thereof. Any such notice shall describe the claim in reasonable
detail. The failure of any Indemnified Party to so notify the
Indemnifying Party of any such action shall not relieve the Indemnifying Party
from any liability which it may have to such Indemnified Party (a) other than
pursuant to this Article IX or (b) under this Article IX unless, and only to the
extent that, such failure results in the Indemnifying Party’s forfeiture of
substantive rights or defenses or the Indemnifying Party is prejudiced by such
delay. The procedures listed below shall govern the procedures for
the handling of indemnification claims.
- 28
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(a) Any
claim for indemnification for Damages that do not result from a Third Party
Claim as defined in the following paragraph, shall be asserted by written notice
given by the Indemnified Party to the Indemnifying Party. Such
Indemnifying Party shall have a period of thirty (30) days after the receipt of
such notice within which to respond thereto. If such Indemnifying
Party does not respond within such thirty (30) day period, such Indemnifying
Party shall be deemed to have refused to accept responsibility to make payment
as set forth in Section 9.1. If such Indemnifying Party does not
respond within such thirty (30) day period or rejects such claim in whole or in
part, the Indemnified Party shall be free to pursue such remedies as specified
in this Agreement.
(b) If
an Indemnified Party shall receive notice or otherwise learn of the assertion by
a person or entity not a party to this Agreement of any threatened legal action
or claim (collectively a “Third Party Claim”),
with respect to which an Indemnifying Party may be obligated to provide
indemnification, the Indemnified Party shall give such Indemnifying Party
written notice thereof within twenty (20) days after becoming aware of such
Third Party Claim.
(c) An
Indemnifying Party may elect to defend (and, unless the Indemnifying Party has
specified any reservations or exceptions, to seek to settle or compromise) at
such Indemnifying Party’s own expense and by such Indemnifying Party’s own
counsel, any Third Party Claim. Within thirty (30) days after the
receipt of notice from an Indemnified Party (or sooner if the nature of such
Third Party Claim so requires), the Indemnifying Party shall notify the
Indemnified Party whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify any reservations
or exceptions. If such Indemnifying Party does not respond within
such thirty (30) day period or rejects such claim in whole or in part, the
Indemnified Party shall be free to pursue such remedies as specified in this
Agreement. In case any such Third Party Claim shall be brought
against any Indemnified Party, and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to assume the
defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense at its own expense. Notwithstanding the
foregoing, in any Third Party Claim in which both the Indemnifying Party, on the
one hand, and an Indemnified Party, on the other hand, are, or are reasonably
likely to become, a party, such Indemnified Party shall have the right to employ
separate counsel and to control its own defense of such claim if, in the
reasonable opinion of counsel to such Indemnified Party, either (x) one or more
significant defenses are available to the Indemnified Party that are not
available to the Indemnifying Party or (y) a conflict or potential conflict
exists between the Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable; provided, however, that in such circumstances the Indemnifying Party
(i) shall not be liable for the fees and expenses of more than one counsel to
all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for
such reasonable fees and expenses of such counsel incurred in any such Third
Party Claim, as such expenses are incurred, provided that the Indemnified
Parties agree to repay such amounts if it is ultimately determined that the
Indemnifying Party was not obligated to provide indemnification under this
Article IX. The Indemnifying Party agrees that it will not, without
the prior written consent of the Indemnified Party, settle, compromise or
consent to the entry of any judgment in any pending or threatened claim relating
to the matters contemplated hereby (if any Indemnified Party is a party thereto
or has been actually threatened to be made a party thereto) unless such
settlement, compromise or consent includes an unconditional release of such
Indemnified Party from all liability arising or that may arise out of such
claim. The Indemnifying Party shall not be liable for any settlement
of a claim effected against an Indemnified Party without the Indemnifying
Party’s written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. The rights accorded to an Indemnified Party hereunder
shall be in addition to any rights that any Indemnified Party may have at common
law, by separate agreement or otherwise; provided, however, that notwithstanding
the foregoing or anything to the contrary contained in this Agreement, nothing
in this Article IX shall restrict or limit any rights that any Indemnified Party
may have to seek equitable relief.
- 29
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ARTICLE
X
MISCELLANEOUS
Section
10.1 Fees and
Expenses.
(a) Each
of the Company and the Investor agrees to pay its own expenses incident to the
performance of its obligations hereunder, except that the Company shall be
solely responsible for (i) all reasonable attorneys fees and expenses incurred
by the Investor in connection with the preparation, negotiation, execution and
delivery of this Agreement and the Warrant, and review of the Registration
Statement, and in connection with any amendments and modifications to this
Agreement, (ii) subject in all cases to Section 10.1(b) hereof, all reasonable
fees and expenses incurred in connection with the Investor’s enforcement of this
Agreement, including, without limitation, all reasonable attorneys fees and
expenses, (iii) as compensation for all other ongoing due diligence, legal and
transaction expenses of the Investor during the term of this Agreement, a fee
equal to 1.85% of the gross proceeds of each individual Draw Down (which amount
may be deducted from the aggregate purchase price paid in respect of such Draw
Down); provided that
for any calendar quarter during which the Company elects not to deliver a Draw
Down Notice hereunder, the Company shall pay to the Investor a fee equal to
$15,000, and (iv) all stamp or other similar taxes and duties, if any, levied in
connection with issuance of the Shares pursuant hereto; provided, however, that the maximum
aggregate amount payable by the Company pursuant to clause (i) above shall be
$45,000 and the Investor shall bear all fees and expenses described in clause
(i) above in excess of $45,000. For the avoidance of doubt, payment
of the fee specified in clause (iii) of the foregoing sentence shall be the sole
obligation of the Company with respect to such expenses of the
Investor.
(b) If
any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement or the Warrant, the prevailing party shall be entitled to
reasonable fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
Section
10.2 Reporting Entity for the
Common Stock. The reporting entity relied upon for the
determination of the trading price or trading volume of the Common Stock on any
given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P.,
any successor thereto, or any mutually agreed upon trading platform, provided
that the Closing Price shall be reported by the Principal Market. The
written mutual consent of the Investor and the Company shall be required to
employ any other reporting entity.
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Section
10.3 Brokerage. Each
of the parties hereto represents that it has had no dealings in connection with
this transaction with any finder or broker who will demand payment of any fee or
commission from the other party. The Company on the one hand, and the
Investor, on the other hand, agree to indemnify the other against and hold the
other harmless from any and all liabilities to any Persons claiming brokerage
commissions or finder’s fees on account of services purported to have been
rendered on behalf of the indemnifying party in connection with this Agreement
or the transactions contemplated hereby.
- 31
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Section
10.4 Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice given in accordance herewith, in each case with a copy to the
e-mail address set forth beside the facsimile number for the addressee
below. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a Trading
Day during normal business hours where such notice is to be received), or the
first Trading Day following such delivery (if delivered other than on a Trading
Day during normal business hours where such notice is to be received) or (b) on
the second Trading Day following the date of mailing by express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the
Company:
Discovery
Laboratories, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
Facsimile:
000-000-0000
Attention:
Deputy General Counsel
Email:
xxxxxxxxxx@XxxxxxxxxXxxx.xxx
with a
copy (which shall not constitute notice) to:
Sonnenschein,
Nath & Xxxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000-0000
Facsimile:
212 768 6800
Attention:
Xxx X. Xxxxx, Esq.
Email:
xxxxxx@xxxxxxxxxxxx.xxx
if to the
Investor:
Kingsbridge
Capital Limited
Attention:
Xx. Xxxxxx Xxxxxxx-Xxxxxxx
P.O. Box
1075
Xxxxxxxxx
House
0 Xxxxxx
Xxxxxx
Xx.
Xxxxxx
Xxxxxx
XX00XX
Channel
Islands
Telephone:
000-00-0000-000-000
Facsimile:
011-44-1534-636-042
Email:
xxxxx@xxxxxxxxxxxxxx.xxx; and xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
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with a
copy (which shall not constitute notice) to:
Kingsbridge
Corporate Services Limited
Xxxxxxxxxxx
Xxxxx
Xxx
Xxxxx
Xxxxxxxxx,
Xxxxxx Xxxxxxx
Xxxxxxxx
of Ireland
Telephone:
000-000-00-000-000
Facsimile:
011-353-45-482-003
Email:
xxxxxxxxxx@xxxxxxxxxxx.xx; xxxxxxxxxx@xxxxxxxxxxx.xx; and
xxxxxxx@xxxxxxxxxxx.xx
and
another copy (which shall not constitute notice) to:
Stroock
& Stroock & Xxxxx LLP
000
Xxxxxx Xxxx
Xxx Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxxxxxx, Esq. — xxxxxxxxxxx@xxxxxxx.xxx
Either
party hereto may from time to time change its contact information for notices
under this Section by giving at least ten (10) days’ prior written notice of
such changed contact information to the other party hereto.
Section
10.5 Assignment. Neither
this Agreement nor any rights of the Investor or the Company hereunder may be
assigned by either party to any other Person without the prior written consent
of the other party, and any purported assignment without such consent shall be
void ab initio.
Section
10.6 Amendment; No
Waiver. No party shall be liable or bound to any other party
in any manner by any warranties, representations or covenants except as
specifically set forth in this Agreement and the Warrant. Except as
expressly provided in this Agreement and the Warrant, neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by both parties hereto. The failure of
either party to insist on strict compliance with this Agreement, or to exercise
any right or remedy under this Agreement, shall not constitute a waiver of any
rights provided under this Agreement, nor estop the parties from thereafter
demanding full and complete compliance nor prevent the parties from exercising
such a right or remedy in the future.
Section
10.7 Entire
Agreement. This Agreement and the Warrant set forth the entire
agreement and understanding of the parties relating to the subject matter hereof
and supersedes all prior and contemporaneous agreements, negotiations and
understandings between the parties, both oral and written, relating to the
subject matter hereof.
- 33
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Section
10.8 Title and
Subtitles. The titles and subtitles used in this Agreement are
used for the convenience of reference and are not to be considered in construing
or interpreting this Agreement.
Section
10.9 Counterparts. This
Agreement may be executed in multiple counterparts, each of which may be
executed by less than all of the parties and shall be deemed to be an original
instrument which shall be enforceable against the parties actually executing
such counterparts and all of which together shall constitute one and the same
instrument.
Section
10.10 Choice of
Law. This Agreement shall be construed under the laws of the
State of New York, without giving effect to the choice of law provisions of such
state that would cause the application of the laws of any other
jurisdiction.
Section
10.11 Specific Enforcement,
Consent to Jurisdiction.
(a) The
Company and the Investor acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that either party shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement by the other party and to enforce specifically the
terms and provisions hereof or thereof, this being in addition to any other
remedy to which either party may be entitled by law or equity.
(b) Each
of the Company and the Investor (i) hereby irrevocably submits to the
jurisdiction of the United States District Court and other courts of the United
States sitting in the State of New York for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement and (ii) hereby waives,
and agrees not to assert in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Each of the Company and
the Investor consents to process being served in any such suit, action or
proceeding by mailing a copy thereof 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 in
this Section 10.12 shall affect or limit any right to serve process in any other
manner permitted by law.
Section
10.12 Survival. The
representations and warranties of the Company and the Investor contained in
Articles IV and V and the covenants contained in Article V and Article VI shall
survive the execution and delivery hereof and the Closing until the termination
of this Agreement, and the agreements and covenants set forth in Article VIII
and Article IX of this Agreement shall survive the execution and delivery hereof
and the Closing hereunder.
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Section
10.13 Publicity. Except
as otherwise required by applicable law or regulation, or Nasdaq rule or
judicial process, prior to the Closing, neither the Company nor the Investor
shall issue any press release or otherwise make any public statement or
announcement with respect to this Agreement or the transactions contemplated
hereby or the existence of this Agreement. In the event the Company
is required by law, regulation, Nasdaq rule or judicial process, based upon
reasonable advice of the Company’s counsel, to issue a press release or
otherwise make a public statement or announcement with respect to this Agreement
prior to the Closing, the Company shall consult with the Investor on the form
and substance of such press release, statement or
announcement. Promptly after the Closing, each party may issue a
press release or otherwise make a public statement or announcement with respect
to this Agreement or the transactions contemplated hereby or the existence of
this Agreement; provided that, prior to issuing any such press release, making
any such public statement or announcement, the party wishing to make such
release, statement or announcement consults and cooperates in good faith with
the other party in order to formulate such press release, public statement or
announcement in form and substance reasonably acceptable to both
parties.
Section
10.14 Severability. The
provisions of this Agreement are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement, and this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of such
provision, had never been contained herein, so that such provisions would be
valid, legal and enforceable to the maximum extent
possible. Notwithstanding the foregoing, if the severance of such
provision materially changes the economic benefits of this Agreement, as
reformed, to either party as such benefits are anticipated as of the date
hereof, then such party may terminate this Agreement on five (5) Trading Days
prior written notice to the other party.
Section
10.15 Further
Assurances. From and after the date of this Agreement, upon
the request of the Investor or the Company, each of the Company and the Investor
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
[Remainder
of this page intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officer as of the date first
written.
|
KINGSBRIDGE
CAPITAL LIMITED
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxxx-Xxxxxxx
|
|
Xxxxxx
Xxxxxxx-Xxxxxxx
|
|
|
Director
|
|
|
DISCOVERY
LABORATORIES, INC.
|
|
|
By:
|
/s/ Xxxx X. Xxxxxx
|
|
Xxxx
X. Xxxxxx
|
|
|
Executive
Vice President and Chief Financial
Officer
|
|
[Signature
Page to Common Stock Purchase Agreement]
Exhibit
A
Form
of Warrant
Exhibit
B
Form
of Draw Down Notice
Kingsbridge
Capital Limited
Attention:
Xx. Xxxx Xxxxxxx
X.X. Xxx
0000
Xxxxxxxxx
House
0 Xxxxxx
Xxxxxx
Xx.
Xxxxxx
Xxxxxx
XX00XX
Channel
Islands
Facsimile:
011-44-1534-636-042
Email:
xxxxx@xxxxxxxxxxxxxx.xxx; and xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Kingsbridge
Corporate Services Limited
Xxxxxxxxxxx
Xxxxx
Xxx
Xxxxx
Xxxxxxxxx,
Xxxxxx Xxxxxxx
Xxxxxxxx
of Ireland
Facsimile:
011-353-45-482-003
Email:
xxxxxxxxxx@xxxxxxxxxxx.xx; xxxxxxxxxx@xxxxxxxxxxx.xx and
xxxxxxx@xxxxxxxxxxx.xx
Stroock
& Stroock & Xxxxx LLP
000
Xxxxxx Xxxx
Xxx Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxxxxxx, Esq. – xxxxxxxxxxx@xxxxxxx.xxx
Reference
is hereby made to that certain Common Stock Purchase Agreement dated as of June
__, 2010 (the “Agreement”) by and between Discovery Laboratories, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
“Company”), and Kingsbridge Capital Limited, an entity organized and existing
under the laws of the British Virgin Islands (the
“Investor”). Capitalized terms used and not otherwise defined herein
shall have the meanings given such terms in the Agreement.
In
accordance with and pursuant to Section 3.1 of the Agreement, the Company hereby
issues this Draw Down Notice to the Investor pursuant to the terms set forth
below.
First
Trading Day of Draw Down Pricing Period: __________, 20[_];
|
Minimum
Obligated Amount:
|
$_______________
|
(determined
using First Methodology/
Second Methodology (PLEASE CIRCLE ONE));
|
Threshold
Price:
|
$_______________.
|
|
Supplemental
Amount:
|
$_______________;
|
|
Supplemental
Threshold Price:
|
$_______________
|
Enclosed
with this Draw Down Notice is an executed copy of the Officer’s Certificate
described in Section 3.1 of the Agreement, the base form of which is attached to
such Agreement as Exhibit C.
Exhibit
C
Form
of Officer’s Certificate
I, [NAME
OF OFFICER], do hereby certify to Kingsbridge Capital Limited (the “Investor”), with
respect to the common stock of Discovery Laboratories, Inc. (the “Company”) issuable in
connection with the Draw Down Notice, dated _______________ (the “Notice”) attached
hereto and delivered pursuant to Article III of the Common Stock Purchase
Agreement, dated June __, 2010 (the “Agreement”), by and
between the Company and the Investor, as follows (capitalized terms used but
undefined herein have the meanings given to such terms in the
Agreement):
I am the
duly elected [OFFICER] of the Company.
The
representations and warranties of the Company set forth in Article IV of the
Agreement are true and correct in all material respects as though made on and as
of the date hereof (except for such representations and warranties that are made
as of a particular date).
The
Company has performed in all material respects all covenants and agreements to
be performed by the Company on or prior to the date hereof related to the Notice
and has satisfied each of the conditions to the obligation of the Investor set
forth in Article VII of the Agreement.
The
Registration Statement is currently effective with the Commission for the sale
of Shares to the Investor.
Assuming
the accuracy of the representations and agreements of the Investor contained in
Section 5.10 of the Agreement, the Shares issuable in respect of the Notice will
be delivered via book entry through the DTC to an account designated by the
Investor.
The
undersigned has executed this Certificate this _____ day of, 20[_].
|
Name:
|
|
|
Title:
|
|
Exhibit
D
Form
of Supplemental Amount Exercise Notice
Discovery
Laboratories, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
Facsimile:
000-000-0000
Attention:
Deputy General Counsel
Reference
is hereby made to that certain Common Stock Purchase Agreement, dated as of June
[__], 2010 (the “Agreement”), by and
between Kingsbridge Capital Limited, an entity organized and existing under the
laws of the British Virgin Islands (the “Investor”), and
Discovery Laboratories, Inc. a corporation organized and existing under the laws
of the State of Delaware (the “Company”). Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Agreement.
In
connection with that certain Draw Down Notice, dated _________ (the “Notice”), the
undersigned duly authorized representative of the Investor hereby notifies the
Company in accordance with Section 3.2 of the Agreement that the Investor shall
fund the Supplemental Amount (or portion thereof) specified in the Notice as
follows:
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Trading
Day of Exercise:
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____________________
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|
Supplemental
Amount (or portion thereof):
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$___________________
|
|
Purchase
Price:
|
$___________________
|
|
Number
of Shares:
|
____________________
|
The
Shares issuable for such Supplemental Amount (or portion thereof) shall be
issued and paid for in connection with the next Settlement Date.
|
Name:
|
|
|
Title:
|
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