PURCHASE AGREEMENT
Exhibit 10.1
PURCHASE AGREEMENT (the “Agreement”), dated as of November 28, 2011, by and between
OXiGENE, INC., a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC,
an Illinois limited liability company (the “Investor”).
WHEREAS:
Subject to the terms and conditions set forth in this Agreement, the Company has the right to sell
to the Investor, and the Investor has the obligation to buy from the Company, up to Twenty Million
Dollars ($20,000,000) of the Company’s common stock, $.01 par value per share (the “Common
Stock”), subject to the Exchange Cap (as defined herein). The shares of Common Stock to be
purchased hereunder are referred to herein as the “Purchase Shares.”
NOW THEREFORE, the Company and the Investor hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the following meanings:
(a) “Available Amount” means initially Twenty Million Dollars ($20,000,000) in the
aggregate, which amount shall be reduced by the Purchase Amount each time the Investor purchases
shares of Common Stock pursuant to Section 2 hereof.
(b) “Bankruptcy Law” means Title 11, U.S. Code, as amended from time to time, or any
similar federal or state law for the relief of debtors.
(c) “Business Day” means any day on which the Principal Market is open for trading
including any day on which the Principal Market is open for trading for a period of time less than
the customary time.
(d) “Closing Sale Price” means, for any security as of any date, the last closing sale
price for such security on the Principal Market as reported by the Principal Market, or, if the
Principal Market is not the principal securities exchange or trading market for such security, the
last closing sale price of such security on the principal securities exchange or trading market
where such security is listed or traded as reported by the Principal Market.
(e) “Confidential Information” means any information disclosed by either party to the
other party, either directly or indirectly, in writing, orally or by inspection of tangible objects
(including, without limitation, documents, prototypes, samples, plant and equipment), which is
designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is confirmed in writing as
being Confidential Information within ten (10) Business Days after the initial disclosure.
Confidential Information may also include information disclosed to a disclosing party by third
parties. Confidential Information shall not, however, include any information which (i) was
publicly known and made generally available in the public domain prior to the time of disclosure by
the disclosing party; (ii) becomes publicly known and made generally available
after
disclosure by the disclosing party to the receiving party through no action or inaction of
the receiving party; (iii) is already in the possession of the receiving party at the time of
disclosure by the disclosing party as shown by the receiving party’s files and records immediately
prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without
a breach of such third party’s obligations of confidentiality; (v) is independently developed by
the receiving party without use of or reference to the disclosing party’s Confidential Information,
as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is
required by law to be disclosed by the receiving party, provided that the receiving party gives the
disclosing party prompt written notice of such requirement prior to such disclosure and assistance
in obtaining an order protecting the information from public disclosure.
(f) “Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any Bankruptcy Law.
(g) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(h) “Maturity Date” means the date that is 720 Business Days (36 Monthly Periods) from
the Commencement Date.
(i) “Monthly Period” means each successive 20 Business Day period commencing with the
Commencement Date.
(j) “Person” means an individual or entity including but not limited to any limited
liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
(k) “Principal Market” means the Nasdaq Capital Market; provided however, that in the
event the Common Stock is ever listed or traded on the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, the NYSE Amex, or the OTC Bulletin Board (it being
understood that as used herein “OTC Bulletin Board” shall also mean any successor or comparable
market quotation system or exchange to the OTC Bulletin Board such as the OTCQB operated by the OTC
Markets Group, Inc.), then the “Principal Market” shall mean such other market or exchange on which
the Company’s Common Stock is then listed or traded.
(l) “Purchase Amount” means, with respect to any particular purchase made hereunder,
the number of shares to be purchased by the Investor pursuant to Section 2 hereof multiplied by the
Purchase Price.
(m) “Purchase Date” means with respect to any particular purchase made hereunder, the
Business Day on which the Investor receives by 12:00 p.m. Eastern Time of such Business Day a valid
Purchase Notice that the Investor is to buy Purchase Shares pursuant to Section 2 hereof.
(n) “Purchase Price” means the lower of (A) the lowest Sale Price of the Common Stock
on the Purchase Date and (B) the arithmetic average of the three (3) lowest Closing Sale Prices for
the Common Stock during the twelve (12) consecutive Business Days ending on the Business Day
immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction).
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(o) “Purchase Notice” shall mean a written notice from the Company to the Investor
directing the Investor to buy such Purchase Amount in Purchase Shares as specified by the Company
therein on the Purchase Date.
(p) “Sale Price” means any sale price for the shares of Common Stock on the Principal
Market as reported by the Principal Market.
(q) “SEC” means the United States Securities and Exchange Commission.
(r) “Securities Act” means the Securities Act of 1933, as amended.
(s) “Signing Market Price” means $0.9101, representing the consolidated
closing bid price of the Common Stock on the Principal Market on the Business Day immediately
preceding the date of this Agreement.
(t) “Transfer Agent” means the transfer agent of the Company as set forth in
Section 11(f) hereof or such other person who is then serving as the transfer agent for the Company
in respect of the Common Stock.
2. PURCHASE OF COMMON STOCK.
Subject to the terms and conditions set forth in this Agreement, the Company has the right to
sell to the Investor, and the Investor has the obligation to purchase from the Company, Purchase
Shares as follows:
(a) Purchases. Immediately following the satisfaction of the conditions (the
“Commencement”) as set forth in Sections 7 and 8 below (the date of satisfaction of such
conditions, the “Commencement Date”), the Company shall have the right but not the
obligation on each Business Day during the term of this Agreement to direct the Investor by its
delivery to the Investor of a Purchase Notice from time to time to buy up to $200,000 of Common
Stock (each such purchase, a “Regular Purchase,” and each such amount of Common Stock, as
may be increased in accordance with this Section 2(a), a “Regular Purchase Amount”) at the
Purchase Price on the Purchase Date. The Regular Purchase Amount may be increased to up to
$400,000 per Purchase Notice if the Closing Sale Price of the Common Stock is not below $1.20
(subject to equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction) on the Purchase Date. The Regular Purchase Amount may be
increased to up to $600,000 per Purchase Notice if the Closing Sale Price of the Common Stock is
not below $2.20 (subject to equitable adjustment for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction) on the Purchase Date. The Regular Purchase
Amount may be increased to up to $800,000 per Purchase Notice if the Closing Sale Price of the
Common Stock is not below $3.00 (subject to equitable adjustment for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction) on the Purchase
Date. The Regular Purchase Amount may be increased to up to $1,200,000 per Purchase Notice if the
Closing Sale Price of the Common Stock is not below $4.50 (subject to equitable adjustment for any
reorganization, recapitalization, non-cash dividend, stock split or other similar transaction) on
the Purchase Date. With respect to each such Regular Purchase, the Company must deliver the
Purchase Shares before 2:00 p.m. Eastern Time on the Business Day following the Purchase Date. If
on any Purchase Date the Closing Sale Price of the Common Stock is below the Regular Purchase
threshold price, such Regular Purchase shall automatically be reduced to the next lowest applicable
Regular Purchase Amount. The Company may deliver multiple Purchase Notices to the Investor so long
as at least two (2) Business Days have passed since the most recent Regular
Purchase was completed.
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(b) Payment for Purchase Shares. The Investor shall pay to the Company an amount
equal to the Purchase Amount with respect to such Purchase Shares as full payment for such Purchase
Shares via wire transfer of immediately available funds on the same Business Day that the Investor
receives such Purchase Shares if they are received by the Investor before 2:00 p.m. Eastern Time
or, if received by the Investor after 2:00 p.m. Eastern Time, the next Business Day. The Company
shall not issue any fraction of a share of Common Stock upon any purchase by the Investor. If the
issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall
round such fraction of a share of Common Stock up or down to the nearest whole share. All payments
made under this Agreement shall be made in lawful money of the United States of America by wire
transfer of immediately available funds to such account as the Company may from time to time
designate by written notice in accordance with the provisions of this Agreement. Whenever any
amount expressed to be due by the terms of this Agreement is due on any day that is not a Business
Day, the same shall instead be due on the next succeeding day that is a Business Day.
(c) Compliance with Registration Statement Eligibility Requirements and Rules of Principal
Market.
(i) Exchange Cap. Subject to Section 2(c)(ii) below, the Company shall not
issue or sell any Purchase Shares or Commitment Shares (as defined herein) pursuant to this
Agreement, and the Investor shall not purchase or acquire any Purchase Shares or Commitment Shares
pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number of
Purchase Shares and Commitment Shares issued pursuant to this Agreement, together with all shares
of Common Stock issued pursuant to any transactions that may be aggregated with the transactions
contemplated by this Agreement under applicable rules of the Principal Market, would exceed
2,974,483 shares of Common Stock (19.99% of the 14,879,857 outstanding shares of Common Stock on
the date of this Agreement) (the “Exchange Cap”), unless and until the Company elects to
solicit shareholder approval of the transactions contemplated by this Agreement and the
shareholders of the Company have in fact approved the transactions contemplated by this Agreement
in accordance with the applicable rules and regulations of the Principal Market and the Certificate
of Incorporation and By-laws of the Company. For the avoidance of doubt, the Company may, but shall
be under no obligation to, request its shareholders to approve the transactions contemplated by
this Agreement; provided, that if shareholder approval is not obtained in accordance with this
Section 2(c)(i), the Exchange Cap shall be applicable for all purposes of this Agreement
and the transactions contemplated hereby at all times during the term of this Agreement (except as
set forth in Section 2(c)(ii) below).
(ii) At-Market Transaction. Notwithstanding Section 2(c)(i) above, the
Exchange Cap shall not be applicable for any purposes of this Agreement nor the transactions
contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall
equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall
be applicable for all other purposes of this Agreement and the transactions contemplated hereby at
all other times during the term of this Agreement, unless the shareholder approval referred to in
Section 2(c)(i) is obtained). “Average Price” means a price per Purchase Share
(rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (i) the
aggregate gross Purchase Price paid by the Investor for all Purchase Shares purchased pursuant to
this Agreement, by (ii) the aggregate number of Purchase Shares issued pursuant to this Agreement.
“Base Price” means a price per Purchase Share equal to the sum of (i) the Signing Market
Price and (ii) $0.395, (subject to adjustment for any reorganization, recapitalization, non-cash
dividend,
stock
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split, reverse stock split or other similar transaction that occurs on or after the date of
this Agreement).
(iii) General. The Company shall not issue any Purchase Shares or Commitment Shares
pursuant to this Agreement if such issuance (taking into account the issuance of any shares of
Common Stock issued pursuant to any transactions that may be aggregated with the transactions
contemplated by this Agreement under applicable rules of the Principal Market) would reasonably be
expected to result in a breach of the Company’s obligations under the rules and regulations of the
Principal Market.
(d) Beneficial Ownership Limitation. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not issue or sell, and the Investor shall not
purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with
all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as
calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder),
would result in the beneficial ownership by the Investor and its affiliates of more than 9.99% of
the then issued and outstanding shares of Common Stock (the “Beneficial Ownership
Limitation”). Upon the written or oral request of the Investor, the Company shall confirm
orally or in writing to the Investor within two (2) Business Days of such request the number of
shares of Common Stock then outstanding. The Investor and the Company shall each cooperate in good
faith in the determinations required hereby and the application hereof. For the avoidance of
doubt, the limitations set forth in this Section 2(d) shall limit the beneficial ownership
of Common Stock by the Investor and its affiliates (as calculated pursuant to Section 13(d) of the
Exchange Act and Rule 13d-3 promulgated thereunder), but, subject to such limitation, shall not
otherwise necessarily limit the total number of shares of Common Stock that may be issued and sold
under this Agreement, which total number is subject to the limitations imposed by the Available
Amount and the provisions of Sections 2(a), 2(c)(i) and 2(c)(iii).
(e) Purchase Price Floor. The Company and the Investor shall not effect any sales or
purchases under this Agreement on any Purchase Date where the Purchase Price for any purchases of
Purchase Shares would be less than the Floor Price. “Floor Price” means $0.50, which shall
be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split
or other similar transaction.
3. INVESTOR’S REPRESENTATIONS AND WARRANTIES.
The Investor represents and warrants to the Company that as of the date hereof and as of the
Commencement Date:
(a) Organization and Authority. Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization with full
right, corporate or partnership power and authority to enter into and to consummate the
transactions contemplated by this Agreement and the Transaction Documents (as defined herein) and
otherwise to carry out its obligations hereunder and thereunder.
(b) Investment Purpose. The Investor is acquiring the Commitment Shares and the
Purchase Shares (collectively, the “Securities”) as principal for its own account and not
with a view to or for distributing or reselling such Securities or any part thereof in violation of
the Securities Act or any applicable state securities law, has no present intention of distributing
any of such Securities in violation of the Securities Act or any applicable state securities law
and has
no direct
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or indirect arrangements or understandings with any other persons to distribute or
regarding the distribution of such Securities in violation of the Securities Act or any applicable
state securities law (this representation and warranty not limiting the Investor’s right to sell
the Securities at any time pursuant to the Registration Statement described herein or otherwise in
compliance with applicable federal and state securities laws and with respect to the Commitment
Shares, subject to Section 5(e) hereof). The Investor is acquiring the Securities
hereunder in the ordinary course of its business.
(c) Accredited Investor Status. The Investor is an “accredited investor” as that term
is defined in Rule 501(a)(3) of Regulation D under the Securities Act (“Regulation D”).
(d) Reliance on Exemptions. The Investor understands that the Securities will be
offered and sold to it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Investor’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Investor set forth herein in order to
determine the availability of such exemptions and the eligibility of the Investor to acquire the
Securities.
(e) Information. The Investor understands that its investment in the Securities
involves a high degree of risk. The Investor (i) is able to bear the economic risk of an
investment in the Securities including a total loss, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and
receive answers from the officers of the Company concerning the financial condition and business of
the Company and others matters related to an investment in the Securities. Neither such inquiries
nor any other due diligence investigations conducted by the Investor or its representatives shall
modify, amend or affect the Investor’s right to rely on the Company’s representations and
warranties contained in Section 4 below. 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 Securities.
(f) No Governmental Review. The Investor understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.
(g) Transfer or Sale. The Investor understands that (i) the Securities may not be
offered for sale, sold, assigned or transferred unless (A) registered pursuant to the Securities
Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 under the
Securities Act (“Rule 144”) may be made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of the Securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that
term is defined in the Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the SEC thereunder.
(h) Validity; Enforcement. The execution and delivery of this Agreement and the other
Transaction Documents to which the Investor is a party that are being delivered as of the date
hereof and the performance by the Investor of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate, partnership, limited
liability company or similar action, as applicable, on the part of the Investor. Each of this
Agreement and
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the Transaction Documents to which the Investor is a party that are being delivered
as of the date hereof has been duly and validly authorized, executed and delivered on behalf of the
Investor and is a valid and binding agreement of the Investor enforceable against the Investor in
accordance with its terms, subject as to enforceability to general principles of equity and to
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(i) Residency. The Investor is a resident of the State of Illinois.
(j) No Prior Short Selling. The Investor represents and warrants to the Company that
at no time prior to the date of this Agreement has the Investor or any of its officers, directors,
partners, members, agents, representatives or affiliates entered into, engaged in or effected, or
caused any person to enter into, engage in or effect, in any manner whatsoever, directly or
indirectly, any (i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of
the Exchange Act) of the Common Stock or (ii) swap, pledge, forward sale contract, option, put,
call or any other agreement, transaction or series of transactions that xxxxxx or transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap, pledge, forward sale contract, option, put, call or any other
agreement, transaction or series of transactions is to be settled by delivery of securities, in
cash or otherwise, or that otherwise establishes a net short position with respect to the Common
Stock.
(k) No General Solicitation. Neither the Investor nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in or is aware of any form of general
solicitation or general advertising (within the meaning of Regulation D) in connection with the
offer or sale of the Securities.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Investor that, except as set forth in the SEC
Documents, as of the date hereof and as of the Commencement Date:
(a) Organization and Qualification. The Company and each of the Subsidiaries (which
for purposes of this Agreement means any entity in which the Company, directly or indirectly, owns
50% or more of the voting stock or capital stock or other similar equity interests) is an entity
duly incorporated or otherwise organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in material violation nor material default of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in: (i) a material adverse effect
on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its
obligations under any
Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and, to
the knowledge of the Company, no proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or
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curtail such power and authority or
qualification. The Company has no Subsidiaries except as set forth on Schedule 4(a).
(b) Authorization; Enforcement; Validity. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and each of the other agreements entered into by the parties on the
Commencement Date and attached hereto as exhibits to this Agreement (collectively, the
“Transaction Documents”), and to issue the Securities in accordance with the terms hereof
and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby, including without
limitation, the issuance of the Commitment Shares and the reservation for issuance and the issuance
of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s
Board of Directors and no further consent or authorization is required by the Company, its Board of
Directors or its shareholders, (iii) this Agreement has been, and each other Transaction Document
shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution on behalf of the
Company, shall constitute, the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and
remedies. The Board of Directors of the Company has approved the resolutions (the “Signing
Resolutions”) substantially in the form as set forth as Exhibit C attached hereto to
authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions are
valid, in full force and effect and have not been modified or supplemented in any material respect.
No other approvals or consents of the Company’s Board of Directors and/or shareholders is
necessary under applicable laws and the Company’s Certificate of Incorporation and/or Bylaws to
authorize the execution and delivery of this Agreement or any of the transactions contemplated
hereby, including, but not limited to, the issuance of the Commitment Shares and the issuance of
the Purchase Shares up to the Exchange Cap, to the extent applicable under the terms of this
Agreement.
(c) Capitalization. As of the date hereof, the authorized capital stock of the
Company is set forth on Schedule 4(c). Except as disclosed in Schedule 4(c), (i)
no shares of the Company’s capital stock are subject to preemptive rights or any other similar
rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no
outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or
any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to register the sale
of any of their respective securities under the Securities Act (except the Registration Rights
Agreement), (v) there are no outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or
may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no
securities or instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities as described in this Agreement and (vii) the Company
does not have any stock appreciation rights or “phantom stock”
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plans or agreements or any similar
plan or agreement. The Company has furnished or made available to the Investor true and correct
copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date
hereof (the “Certificate of Incorporation”), and the Company’s By-laws, as amended and as
in effect on the date hereof (the “By-laws”), and summaries of the terms of all securities
convertible into or exercisable for Common Stock, if any, and copies of any documents containing
the material rights of the holders thereof in respect thereto.
(d) Issuance of Securities. Upon issuance and payment therefor in accordance with the
terms and conditions of this Agreement, the Purchase Shares shall be validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common Stock. The Commitment
Shares have been duly authorized and, upon issuance in accordance with the terms hereof, the
Commitment Shares shall be (i) validly issued, fully paid and non-assessable and (ii) free from all
taxes, liens and charges with respect to the issue thereof. The Company has authorized and
reserved for issuance upon purchase under this Agreement as Purchase Shares such number of shares
of Common Stock as set forth in Exhibit C. 599,401 shares of Common Stock (subject to
equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction) have been duly authorized and reserved for issuance as Additional
Commitment Shares in accordance with this Agreement.
(e) No Conflicts. Except as disclosed in Schedule 4(e), the execution,
delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (subject to the Exchange Cap, to the
extent applicable, including, without limitation, the reservation for issuance and issuance of the
Purchase Shares and Additional Commitment Shares) will not (i) result in a violation of the
Certificate of Incorporation, any Certificate of Designations, Preferences and Rights of any
outstanding series of preferred stock of the Company or the By-laws or (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 agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and the rules and regulations
of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any
property or asset of the Company or any of its Subsidiaries is bound or affected, except in the
case of conflicts, defaults, terminations, amendments, accelerations, cancellations and violations
under clause (ii), which would not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 4(e), neither the Company nor its Subsidiaries is in
violation of any term of or in default under its Certificate of Incorporation, any Certificate of
Designation, Preferences and Rights of any outstanding series of preferred stock of the Company or
By-laws or their organizational charter or by-laws, respectively. Except as disclosed in
Schedule 4(e), neither the Company nor any of its Subsidiaries is in violation of any term
of or is in default under any material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company
or its Subsidiaries, except for possible conflicts, defaults, terminations or amendments which
would not reasonably be expected to have a Material Adverse Effect. The business of the Company
and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law,
ordinance, or regulation of any governmental entity, except for possible violations, the sanctions
for which either individually or in the aggregate would not reasonably be expected to have a
Material
Adverse Effect. Except as specifically contemplated by this Agreement and as required under
the Securities Act, the Principal Market or applicable state securities laws, the Company is not
required to obtain any consent, authorization or order of, or make any filing or registration with,
any court or governmental agency or any regulatory or
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self-regulatory agency in order for it to
execute, deliver or perform any of its obligations under or contemplated by the Transaction
Documents in accordance with the terms hereof or thereof. Except as disclosed in Schedule
4(e), all consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence shall be obtained or effected on or prior to
the Commencement Date. Except as disclosed in the SEC Documents, since one year prior to the date
hereof, the Company has not received nor delivered any notices or correspondence from or to the
Principal Market relating to non-compliance with exchange listing rules or standards. As of the
date hereof and except as disclosed in the SEC Documents, the Principal Market has not commenced
any delisting proceedings against the Company.
(f) SEC Documents; Financial Statements. Except as disclosed in Schedule
4(f), the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by the Company under the Securities Act and the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Documents”) on a timely basis or
has received a valid extension of such time of filing and has filed any such SEC Documents prior to
the expiration of any such extension. As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the Securities Act and the Exchange Act, as
applicable, and none of the SEC Documents, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Documents comply in all
material respects with applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with United States generally accepted accounting principles applied on
a consistent basis during the periods involved (“GAAP”), except as may be otherwise
specified in such financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to customary, year-end audit adjustments. Except as listed in
Schedule 4(f), the Company has received no notices or correspondence from the SEC during
the one year preceding the date hereof. To the knowledge of the Company, the SEC has not commenced
any enforcement proceedings against the Company or any of its subsidiaries.
(g) Absence of Certain Changes. Except as disclosed in Schedule 4(g), since
the filing of the Company’s Form 10-Q for the period ending September 30, 2011, there has been no
material adverse change in the business, properties, operations, financial condition or results of
operations of the Company or its Subsidiaries. The Company has not taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the
Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors
intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is financially
solvent and is generally able to pay its debts as they become due.
(h) Absence of Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against
or affecting the Company, the Common Stock or any of the Company’s Subsidiaries or any of the
Company’s or the Company’s Subsidiaries’ officers or directors in their capacities as such, which
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would reasonably be expected to have a Material Adverse Effect. A description of each action,
suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body which, as of the date of this Agreement, is pending or
threatened in writing against or affecting the Company, the Common Stock or any of the Company’s
Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their
capacities as such, is set forth in Schedule 4(h).
(i) Acknowledgment Regarding Investor’s Status. The Company acknowledges and agrees
that the Investor is acting solely in the capacity of arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and thereby. 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 the Transaction Documents and the transactions
contemplated hereby and thereby and any advice given by the Investor or any of its representatives
or agents in connection with the Transaction Documents and the transactions contemplated hereby and
thereby is merely incidental to the Investor’s purchase of the Securities. The Company further
represents to the Investor that the Company’s decision to enter into the Transaction Documents has
been based solely on the independent evaluation of the transactions contemplated thereby by the
Company and its representatives and advisors.
(j) No General Solicitation. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer or sale of the
Securities.
(k) Intellectual Property Rights. To its knowledge, the Company and its Subsidiaries
own or possess adequate rights or licenses to use all material trademarks, trade names, service
marks, service xxxx registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct
their respective businesses as now conducted, other than where the failure to own or have such
rights or licenses would not reasonably be expected to have a Material Adverse Effect. Except as
set forth on Schedule 4(k), none of the Company’s material trademarks, trade names, service
marks, service xxxx registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, government authorizations, trade secrets or other intellectual property rights
have expired or terminated. The Company and its Subsidiaries do not have any knowledge of any
infringement by the Company or its Subsidiaries of any material trademark, trade name rights,
patents, patent rights, copyrights, inventions, licenses, service names, service marks, service
xxxx registrations, trade secret or other similar rights of any third Person and, except as set
forth on Schedule 4(k), there is no claim, action or proceeding pending against, or to the
Company’s knowledge, being threatened against, the Company or its Subsidiaries regarding trademark,
trade name, patents, patent rights, invention, copyright, license, service names, service marks,
service xxxx registrations, trade secret or other infringement, which would reasonably be expected
to have a Material Adverse Effect.
(l) Environmental Laws. To its knowledge, the Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have
received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where, in each of the three foregoing
clauses, the failure to
-11-
so comply would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(m) Title. The Company and its Subsidiaries have good and marketable title in fee
simple to all real property owned by them and good and marketable title in all personal property
owned by them that is material to the business of the Company and its Subsidiaries, in each case
free and clear of all liens, encumbrances and defects (“Liens”), except for Liens as do not
materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries, and Liens for the payment
of federal, state or other taxes, the payment of which is neither delinquent nor subject to
penalties. Any real property and facilities held under lease by the Company and its Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and its
Subsidiaries are in compliance with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the Company and its
Subsidiaries.
(n) Insurance. The Company and each of its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary in the businesses in which the
Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole.
(o) Regulatory Permits. The Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and, except where the
failure to obtain any such certificates, authorizations or permits would not be reasonably expected
to have a Material Adverse Effect, neither the Company nor any such Subsidiary has received any
written notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit.
(p) Tax Status. The Company and each of its Subsidiaries has made or filed all
federal and state income and all other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the Company and each of
its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.
(q) Transactions With Affiliates. Except as set forth in the SEC
Documents, none of the officers or directors of the Company and, to the knowledge of the Company,
none of the employees of the Company is presently a party to any transaction with the Company or
any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by,
providing for
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rental of real or personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or is an officer,
director, trustee or partner, in each case in excess of $100,000 other than for (i) payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf
of the Company and (iii) other employee benefits, including stock option agreements under any stock
option plan of the Company.
(r) Application of Takeover Protections. The Company and its board of directors have
taken or will take prior to the Commencement Date all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or would
reasonably be expected to become applicable to the Investor as a result of the transactions
contemplated by this Agreement, including, without limitation, the Company’s issuance of the
Securities and the Investor’s ownership of the Securities.
(s) Disclosure. Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, the Company confirms that neither it
nor any other Person acting on its behalf has provided the Investor or its agents or counsel with
any information that it believes constitutes or might constitute material, non-public information
which is not otherwise disclosed in the Registration Statement or prospectus supplements thereto or
otherwise has been made publicly available prior to the date of this Agreement. The Company
understands and confirms that the Investor will rely on the foregoing representation in effecting
purchases and sales of securities of the Company. All of the disclosure furnished by or on behalf
of the Company to the Investor regarding the Company, its business and the transactions
contemplated hereby, including the disclosure schedules to this Agreement, is true and correct in
all material respects and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company acknowledges and agrees that
the Investor neither makes nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3 hereof.
(t) Foreign Corrupt Practices. Neither the Company, nor to the knowledge
of the Company, any agent or other person acting on behalf of the Company, has (i) directly or
indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by
the Company (or made by any person acting on its behalf of which the Company is aware) which is in
violation of applicable law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
5. COVENANTS.
(a) Filing of Form 8-K and Registration Statement. The Company agrees that it shall,
within the time required under the Exchange Act, file a Report on Form 8-K disclosing this
Agreement and the transaction contemplated hereby. The Company shall also use commercially
reasonable efforts to file within twenty (20) Business Days from the date hereof a new registration
statement (“Registration Statement”) covering only the resale of the Purchase Shares and
the Commitment Shares, in accordance with the terms of the Registration Rights Agreement between
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the Company and the Investor, dated as of the date hereof (“Registration Rights
Agreement”). Any securities issuable under this Agreement that have not been registered under
the Securities Act shall bear the following restrictive legend (the “Restrictive Legend”):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
APPLICABLE STATE SECURITIES LAWS.
(b) Blue Sky. The Company shall use commercially reasonable efforts to take such
action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify (x)
the initial issuance or sale of the Commitment Shares and any Purchase Shares to the Investor under
this Agreement and (y) any subsequent resale of the Commitment Shares and any Purchase Shares by
the Investor, in each case, under applicable securities or “Blue Sky” laws of the states of the
United States in such states as is reasonably requested by the Investor from time to time, and
shall provide evidence of any such action so taken to the Investor, and the Company shall continue
to use commercially reasonable efforts to maintain in effect such exemption or qualification, as
applicable.
(c) Listing. The Company shall use commercially reasonable efforts to promptly secure
the listing of all of the Purchase Shares and Commitment Shares upon each national securities
exchange and automated quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance) and shall maintain, so long as any other shares of Common
Stock shall be so listed, such listing of all such securities from time to time issuable under the
terms of the Transaction Documents. The Company shall maintain the Common Stock’s authorization
for quotation on the Principal Market. The Company shall promptly, and in no event later than the
following Business Day, provide to the Investor copies of any notices it receives from the
Principal Market regarding the continued eligibility of the Common Stock for listing on such
automated quotation system or securities exchange. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section.
(d) Limitation on Short Sales and Hedging Transactions. The Investor agrees that
beginning on the date of this Agreement and ending on the date of termination of this Agreement
as provided in Section 11, the Investor and its officers, directors, partners, members,
agents, representatives and affiliates shall not enter into, engage in or effect, or cause any
person to enter into, engage in or effect, in any manner whatsoever, directly or indirectly, any
(i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the Exchange Act)
of the Common Stock or (ii) swap, pledge, forward sale contract, option, put, call or any other
agreement, transaction or series of transactions that xxxxxx or transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such
swap, pledge, forward sale contract, option, put, call or any other agreement, transaction or
series of
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transactions is to be settled by delivery of securities, in cash or otherwise, or that
otherwise establishes a net short position with respect to the Common Stock.
(e) Issuance of Commitment Shares. Immediately upon the execution of this Agreement,
the Company shall cause to be issued to the Investor as consideration for the Investor entering
into this Agreement 299,700 shares of Common Stock (the “Initial Commitment Shares”) and
shall deliver to the Transfer Agent a letter in the form as set forth as Exhibit E attached
hereto with respect to the issuance of the Initial Commitment Shares. In connection with each
purchase of Purchase Shares hereunder, the Company agrees to issue to the Investor a number of
shares of Common Stock (the “Additional Commitment Shares” and together with the Initial
Commitment Shares, the “Commitment Shares”) equal to the product of (x) 599,401 and (y) the
Purchase Amount Fraction. The “Purchase Amount Fraction” shall mean a fraction, the
numerator of which is the Purchase Amount purchased by the Investor with respect to such purchase
of Purchase Shares and the denominator of which is Twenty Million Dollars ($20,000,000). The
Additional Commitment Shares shall be equitably adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction. The Initial Commitment Shares shall
be issued in certificated form and shall bear the Restrictive Legend.
(f) Due Diligence. The Investor shall have the right, from time to time as the
Investor may reasonably deem appropriate, to perform reasonable due diligence on the Company during
normal business hours, upon two (2) Business Days’ prior written notice to the Company, which shall
describe the information that is sought for the due diligence. The Company and its officers and
employees shall provide information and reasonably cooperate with the Investor in connection with
any reasonable request by the Investor related to the Investor’s due diligence of the Company.
Each party hereto agrees not to disclose any Confidential Information of the other party to any
third party and shall not use the Confidential Information for any purpose other than in connection
with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges
that the Confidential Information shall remain the property of the disclosing party and agrees that
it shall take all reasonable measures to protect the secrecy of any Confidential Information
disclosed by the other party. The Company confirms that neither it nor any other Person acting on
its behalf shall provide the Investor or its agents or counsel with any information that it
believes constitutes or might constitute material, non-public information which is not otherwise
disclosed in the Registration Statement or prospectus supplements thereto or otherwise publicly
disclosed.
(g) Purchase Records. The Investor and the Company shall each maintain records showing
the remaining Available Amount at any given time and the dates and Purchase Amounts for each
purchase or shall use such other method, reasonably satisfactory to the Investor and the Company,
to record such information.
(h) Taxes. The Company shall pay any and all transfer, stamp or similar taxes that
may be payable with respect to the issuance and delivery of any shares of Common Stock to the
Investor made under this Agreement.
(i) No Variable Rate Transactions. From the date hereof until the earliest of (x)
the Maturity Date, (y) in the event of a termination of this Agreement following the Commencement
Date but prior to the Maturity Date, the six-month anniversary of such termination date, or (z)
there no longer remains any amounts available for purchase under the Available Amount, the Company
shall be prohibited from effecting, utilizing any existing agreement or arrangement to effect, or
entering into any agreement or arrangement to effect any issuance by the Company or any of its
Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration (or a combination
of units thereof) involving a Variable Rate Transaction, other than in connection with
-15-
an Exempt
Issuance. “Variable Rate Transaction” means (i) a transaction in which the Company issues
or sells any debt or equity securities that are convertible into, exchangeable or exercisable for,
or include the right to receive additional shares of Common Stock either (A) at a conversion price,
exercise price or exchange rate or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time after the initial issuance of
such debt or equity securities, or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such debt or equity
security or upon the occurrence of specified or contingent events directly or indirectly related to
the business of the Company or the market for the Common Stock (excluding customary anti-dilution
provisions) or (ii) an “equity line of credit” or “at the market” offering, whereby the Company may
sell securities at a future determined price. “Exempt Issuance” means the issuance of (a)
shares of Common Stock or options to employees, officers, directors or vendors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a
majority of the members of a committee of directors established for such purpose, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other
securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities, (c) securities issued
pursuant to acquisitions or strategic transactions approved by the directors of the Company, which
acquisitions or strategic transactions can have a Variable Rate Transaction component, provided
that any such issuance shall only be to a Person (or to the equity holders of a Person) which is,
itself or through its subsidiaries, an operating company or an asset in the biotechnology,
pharmaceutical or life sciences industries and shall provide to the Company additional benefits in
addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities, (d) securities issued at a fixed price as part of a private
placement or registered public offering of debt or equity and (e) shares of Common Stock pursuant
to the Sales Agreement, dated July 21, 2010, as amended from time to time, between the Company and
XxXxxxxx, Xxxxx & Vlak LLC. “Common Stock Equivalents” means any securities of the
Company, which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
6. TRANSFER AGENT INSTRUCTIONS.
On the Commencement Date, the Company shall cause any restrictive legend on the Initial
Commitment Shares to be removed, and all of the Purchase Shares and Additional
Commitment Shares to be issued under this Agreement shall be issued without any restrictive
legend unless the Investor expressly consents otherwise. The Company shall issue irrevocable
instructions to the Transfer Agent, and any subsequent transfer agent, to issue Additional
Commitment Shares and Purchase Shares in the name of the Investor in the form agreed to by the
parties prior to the Commencement Date (the “Irrevocable Transfer Agent Instructions”). The
Company warrants to the Investor that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 6, will be given by the Company to the Transfer Agent with
respect to the Purchase Shares and the Additional Commitment Shares, and that Commitment Shares and
the Purchase Shares shall otherwise be freely transferable on the books and records of the Company
as and to the extent provided in this Agreement. The Investor acknowledges that the Company’s
undertakings in this Section 6 are made in reliance on the Investor’s representations and
warranties set forth in Section 3 hereof.
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7. CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE
SALES OF SHARES OF COMMON STOCK.
The right of the Company hereunder to commence sales of the Purchase Shares to the Investor is
subject to the satisfaction of each of the following conditions:
(a) The Investor shall have executed each of the Transaction Documents and delivered the same
to the Company;
(b) The Registration Statement covering the sale of all of the Commitment Shares and Purchase
Shares shall have been declared effective under the Securities Act by the SEC and no stop order
with respect to the Registration Statement shall be pending or, to the knowledge of the Company,
threatened by the SEC;
(c) An additional listing application covering the sale of all of the Commitment Shares and
the Purchase Shares shall have been approved by the Principal Market; and
(d) The representations and warranties of the Investor shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality, in which case, such representations and warranties shall be true and
correct without further qualification) as of the date when made and as of the Commencement Date as
though made at that time (except for representations and warranties that speak as of a specific
date) and the Investor shall have performed, satisfied and complied with the covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied or complied with by
the Investor at or prior to the Commencement Date.
8. CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.
The obligation of the Investor to buy Purchase Shares under this Agreement is subject to the
satisfaction of each of the following conditions and once such conditions have been initially
satisfied, there shall not be any ongoing obligation to satisfy such conditions after the
Commencement has occurred:
(a) The Company shall have executed each of the Transaction Documents and delivered the same
to the Investor;
(b) The Company shall have caused its Transfer Agent to re-issue to the Investor a certificate
for the Initial Commitment Shares without the Restrictive Legend;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the
Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal
Market and the Purchase Shares and the Commitment Shares shall be approved for listing upon the
Principal Market;
(d) The Investor shall have received the opinion of the Company’s legal counsel dated as of
the Commencement Date substantially in the form of Exhibit A attached hereto;
(e) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 4 above, in which case, such representations and warranties
-17-
shall be true and correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and warranties that speak
as of a specific date) and the Company shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date
and the Company shall have provided the Buyer a written notice that the Company has not disclosed any
material non-public information to the Buyer that has not otherwise been publicly disclosed by the
filing of a Form 8-K and such other disclosure as may be required pursuant to applicable securities
laws. The Investor shall have received a certificate, executed by the CEO, President or CFO of the
Company, dated as of the Commencement Date, to the foregoing effect in the form attached hereto as
Exhibit B;
(f) The Board of Directors of the Company shall have adopted resolutions in the form attached
hereto as Exhibit C which shall be in full force and effect without any amendment or
supplement thereto as of the Commencement Date;
(g) As of the Commencement Date, the Company shall have reserved out of its authorized and
unissued Common Stock, (A) solely for the purpose of effecting purchases of Purchase Shares
hereunder, 2,400,000 shares of Common Stock and (B) as Additional Commitment Shares in accordance
with Section 5(e) hereof, 599,401 shares of Common Stock;
(h) The Irrevocable Transfer Agent Instructions, in form acceptable to the parties shall have
been delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent;
(i) The Company shall have delivered to the Investor a certificate evidencing the
incorporation and good standing of the Company in the State of Delaware issued by the Secretary of
State of the State of Delaware as of a date within ten (10) Business Days of the Commencement Date;
(j) The Company shall have delivered to the Investor a certified copy of the Certificate of
Incorporation as certified by the Secretary of State of the State of Delaware within ten (10)
Business Days of the Commencement Date;
(k) The Company shall have delivered to the Investor a secretary’s certificate executed by the
Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as
Exhibit D;
(l) A registration statement covering the resale by the Investor of all of the Purchase Shares
and the Commitment Shares shall have been declared effective under the Securities Act by the SEC
and no stop order with respect to the registration statement shall be pending or, to the knowledge
of the Company, threatened by the SEC. The Company shall have prepared and delivered to the
Investor a final and complete form of prospectus, dated and current as of the Commencement Date, to
be used by the Investor in connection with any sales of the Commitment Shares and any Purchase
Shares, and to be filed by the Company within one (1) Business Day after the Commencement Date. The
Company shall have made all filings under all applicable federal and state securities or “Blue Sky”
laws necessary to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant
to this Agreement in compliance with such laws;
(m) No Event of Default shall have occurred, or any event which, after notice and/or lapse of
time, would become an Event of Default shall have occurred;
-18-
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any,
and such actions as reasonably requested by the Investor, in order to render inapplicable any
control share acquisition, business combination, shareholder rights plan or poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or would
reasonably be expected to become applicable to the Investor as a result of the transactions
contemplated by this Agreement, including, without limitation, the Company’s issuance of the
Commitment Shares and the Purchase Shares and the Investor’s ownership of such securities; and
(o) The Company shall have provided the Investor with the information reasonably requested by
the Investor in connection with its due diligence requests made prior to, or in connection with,
the Commencement, in accordance with the terms of Section 5(f) hereof.
9. INDEMNIFICATION.
In consideration of the Investor’s execution and delivery of the Transaction Documents and
acquiring the Securities hereunder and in addition to all of the Company’s other obligations under
the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless the
Investor and all of its affiliates, shareholders, officers, directors, and employees and any of the
foregoing persons’ agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement) (collectively, the
“Indemnitees”) from and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the
“Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of,
or relating to (a) any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained
in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee and
arising out of or resulting from the execution, delivery, performance or enforcement of the
Transaction Documents or any other certificate, instrument or document contemplated hereby or
thereby, other than with respect to Indemnified Liabilities which result from the gross negligence
or willful misconduct of the Indemnitee. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
10. EVENTS OF DEFAULT.
An “Event of Default” shall be deemed to have occurred at any time as any of the
following events occurs:
(a) while a registration statement is required to be kept effective pursuant to the terms of
the Registration Rights Agreement, the effectiveness of a registration statement registering any of
the Commitment Shares or the Purchase Shares lapses for any reason (including, without limitation,
the issuance of a stop order) or is unavailable to the Investor for the resale of any or all of the
Commitment Shares or the Purchase Shares, and such lapse or unavailability continues for a period
of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business
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Days in
any 365-day period;
(b) the suspension from trading or failure of the Common Stock to be listed on the Principal
Market for a period of three (3) consecutive Business Days;
(c) the delisting of the Company’s Common Stock from the Principal Market, if the Common Stock
is not immediately thereafter trading on the New York Stock Exchange, the Nasdaq Global Market, the
Nasdaq Global Select Market, the OTC Bulletin Board (or nationally recognized successor thereto),
or the NYSE Amex;
(d) the failure for any reason by the Transfer Agent to issue Purchase Shares or Additional
Commitment Shares to the Investor within five (5) Business Days after the applicable Purchase Date
which the Investor is entitled to receive;
(e) the Company breaches any representation, warranty, covenant or other term or condition
under any Transaction Document if such breach would reasonably be expected to have a Material
Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only
if such breach continues for a period of at least five (5) Business Days;
(f) if any Person commences a proceeding against the Company pursuant to or within the meaning
of any Bankruptcy Law;
(g) if the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a
voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors or is generally unable to
pay its debts as the same become due;
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the
Company or for all or substantially all of its property, or (C) orders the liquidation of the
Company or any Subsidiary; or
(i) if at any time after the Commencement Date, the Exchange Cap is reached (to the extent
such Exchange Cap is applicable pursuant to Section 2(c) hereof).
In addition to any other rights and remedies under applicable law and this Agreement, including the
Investor termination rights under Section 11 hereof, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event
of Default, has occurred and is continuing, the Investor shall not be permitted or obligated to
purchase any shares of Common Stock under this Agreement. If pursuant to or within the meaning of
any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of
its property, or the Company makes a general assignment for the benefit of its creditors, (any of
which would be an Event of Default as described in Sections 10(f), 10(g) and 10(h) hereof) this
Agreement shall automatically terminate without any liability or payment to the Company without
further action or notice by any Person. No termination of this Agreement under Section 11(a) or
11(d) hereof shall affect the Company’s or the Investor’s obligations under this Agreement with
respect to pending purchases of Purchase Shares and the Company and the Investor shall complete
their respective obligations with respect to any such pending purchases under this Agreement.
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11. TERMINATION
This Agreement may be terminated only as follows:
(a) If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a
voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed
for the Company or for all or substantially all of its property, or the Company makes a general
assignment for the benefit of its creditors (any of which would be an Event of Default as described
in Sections 10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without
any liability or payment to the Company without further action or notice by any Person. No such
termination of this Agreement under this Section 11(a) shall affect the Company’s or the Investor’s
obligations under this Agreement with respect to pending purchases of Purchase Shares and the
Company and the Investor shall complete their respective obligations with respect to any such
pending purchases under this Agreement.
(b) In the event that the Commencement shall not have occurred, the Company shall have the
option to terminate this Agreement for any reason or for no reason without any liability whatsoever
of any party to any other party under this Agreement.
(c) In the event that the Commencement shall not have occurred on or before February 29, 2012,
due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect to
the Commencement, the non-breaching party shall have the option to terminate this Agreement at the
close of business on such date or thereafter without liability of any party to any other party.
(d) At any time after the Commencement Date, the Company shall have the option to terminate
this Agreement for any reason or for no reason by delivering notice (a “Company Termination
Notice”) to the Investor electing to terminate this Agreement without any liability whatsoever
of any party to any other party under this Agreement. The Company Termination Notice shall not be
effective until one (1) Business Day after it has been received by the Investor. No such
termination of this Agreement under this Section 11(d) shall affect the Company’s or the Investor’s
obligations under this Agreement with respect to pending purchases of Purchase Shares and the
Company and the Investor shall complete their respective obligations with respect to any such
pending purchases under this Agreement.
(e) This Agreement shall automatically terminate on the date that the Company sells and the
Investor purchases the full Available Amount, subject in all cases to the Exchange Cap (to the
extent applicable under the terms of this Agreement), as provided herein, without any action or
notice on the part of any party and without any liability whatsoever of any party to any other
party under this Agreement.
(f) If by the Maturity Date for any reason or for no reason the full Available Amount, subject
in all cases to the Exchange Cap (to the extent applicable under the terms of this Agreement),
under this Agreement has not been purchased as provided for in Section 2 of this Agreement, this
Agreement shall automatically terminate on the Maturity Date, without any action or notice on the
part of any party and without any liability whatsoever of any party to any other party under this
Agreement.
Except as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f),
10(g) and 10(h)), 11(c) and 11(f), any termination of this Agreement pursuant to this Section 11
shall be effected by written notice from the Company to the Investor, or the Investor to the
Company, as the
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case may be, setting forth the basis for the termination hereof. The representations
and warranties and covenants of the Company and the Investor contained in Sections 3, 4, and 6
hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and
covenants set forth in Sections 10, 11 and 12 shall survive the Commencement and any termination of
this Agreement. No termination of this Agreement shall affect the Company’s or the Investor’s
rights or obligations (i) under the Registration Rights Agreement which shall survive any such
termination or (ii) under this Agreement with respect to pending purchases and the Company and the
Investor shall complete their respective obligations with respect to any pending purchases under
this Agreement.
12. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of
Delaware shall govern all issues concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the other Transaction Documents shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, for the adjudication of any dispute hereunder or under the other
Transaction Documents or in connection herewith or therewith, or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file
shall be considered due execution and shall be binding upon the signatory thereto with the same
force and effect as if the signature were an original, not a facsimile signature or a signature in
a “.pdf” format data file.
(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.
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(e) Entire Agreement. This Agreement supersedes all other prior oral or written
agreements between the Investor, the Company, their affiliates and persons acting on their behalf
with respect to the matters discussed herein, and this Agreement, the other Transaction Documents
and the instruments referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein,
neither the Company nor the Investor makes any representation, warranty, covenant or undertaking
with respect to such matters. The Company acknowledges and agrees that is has not relied on, in
any manner whatsoever, any representations or statements, written or oral, other than as expressly
set forth in the Transaction Documents.
(f) Notices. Any notices, consents or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to have been
delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
| If to the Company: |
| OXiGENE, Inc. | |||
| 000 Xxxxxxx Xxxx., Xxx 000 | |||
| Xxxxx Xxx Xxxxxxxxx, XX 00000 | |||
| Telephone: 000-000-0000 | |||
| Facsimile: 000-000-0000 | |||
| Attention: Chief Executive Officer |
| With a copy to: |
| Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. | |||
| Xxx Xxxxxxxxx Xxxxxx | |||
| Xxxxxx, XX 00000 | |||
| Telephone: (000) 000-0000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxx X. Xxxxx, Esq. |
| If to the Investor: |
| Lincoln Park Capital Fund, LLC | |||
| 000 Xxxxx Xxxxx, Xxxxx 000 | |||
| Xxxxxxx, XX 00000 | |||
| Telephone: 000-000-0000 | |||
| Facsimile: 000-000-0000 | |||
| Attention: Xxxx Xxxxxxxxxx/Xxxxxxxx Xxxx |
| With a copy to: |
| Xxxxxxxxx Traurig, LLP | |||
| The MetLife Building | |||
| 000 Xxxx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | |||
| Telephone: (000) 000-0000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. |
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| If to the Transfer Agent: |
| Operations Center | |||
| 0000 00xx Xxxxxx | |||
| Xxxxxxxx, Xxx Xxxx, XX 00000 | |||
| Telephone: (000) 000-0000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxx Xxxxxxxxx |
or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party three (3) Business
Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date, and recipient facsimile
number or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors and Permitted Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted assigns. The Company
shall not assign this Agreement or any rights or obligations hereunder without the prior written
consent of the Investor, including by merger or consolidation. The Investor may not assign its
rights or obligations under this Agreement.
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
(i) Publicity. The Investor shall have the right to approve before issuance any press
release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever
with respect to, in any manner, the Investor, its purchases hereunder or any aspect of this
Agreement or the transactions contemplated hereby; provided, however, that the Company shall be
entitled, without the prior approval of the Investor, to make any press release or other public
disclosure (including any filings with the SEC) with respect to such transactions as is required by
applicable law and regulations so long as the Company and its counsel consult with the Investor in
connection with any such press release or other public disclosure at least two (2) Business Days
prior to its release. The Investor must be provided with a copy thereof at least two (2) Business
Days prior to any release or use by the Company thereof. Nothing herein shall require the
Company to consult with or obtain the approval of the Investor for disclosures which may refer to
or relate to this Agreement made as part of the Company’s normal periodic reports on Form 10-Q or
Form 10-K filed with the SEC, provided that such disclosure is substantially similar to that
previously reviewed and approved by the Investor or its counsel.
(j) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(k) No Financial Advisor, Placement Agent, Broker or Finder. The Company represents
and warrants to the Investor that it has not engaged any financial advisor, placement agent, broker
or finder in connection with the transactions contemplated hereby. The Investor
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represents and warrants to the Company that it has not engaged any financial advisor,
placement agent, broker or finder in connection with the transactions contemplated hereby. Each
party shall be responsible for the payment of any fees or commissions, if any, of any financial
advisor, placement agent, broker or finder relating to or arising out of the transactions
contemplated hereby. Each party shall pay, and hold the other party harmless against, any
liability, loss or expense (including, without limitation, attorneys’ fees and out of pocket
expenses) arising in connection with any such claim against such party by the other party.
(l) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
(m) Remedies, Other Obligations, Breaches and Injunctive Relief. The remedies
provided in this Agreement shall be cumulative and in addition to all other remedies available to a
party under this Agreement, at law or in equity (including a decree of specific performance and/or
other injunctive relief), no remedy of a party contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein shall limit such
party’s right to pursue actual damages for any failure by the other party to comply with the terms
of this Agreement. Each party acknowledges that a breach by it of its obligations hereunder may
cause irreparable harm to the other party and that the remedy at law for any such breach may be
inadequate. Each party therefore agrees that, in the event of any such breach or threatened
breach, the other party shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach, without the necessity of showing economic loss and without any
bond or other security being required.
(n) Enforcement Costs. If: (i) this Agreement is placed by the Investor in the hands
of an attorney for enforcement or is enforced by the Investor through any legal proceeding; or (ii)
an attorney is retained to represent the Investor in any bankruptcy, reorganization, receivership
or other proceedings affecting creditors’ rights and involving a claim under this Agreement;, then
the Company shall pay to the Investor, as incurred by the Investor, all reasonable costs and
expenses including attorneys’ fees incurred in connection therewith, in addition to all other
amounts due hereunder. In any dispute arising under or relating to this Agreement, the prevailing
party shall be awarded its reasonable costs and expenses, including attorneys’ fees, incurred in
connection therewith, in addition to all other amounts due hereunder.
(o) Failure or Indulgence Not Waiver. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further exercise thereof
or of any other right, power or privilege.
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IN WITNESS WHEREOF, the Investor and the Company have caused this Purchase Agreement to be
duly executed as of the date first written above.
| THE COMPANY: OXiGENE, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx, M.D., Ph.D | |||
| Title: | President and Chief Executive Officer | |||
| INVESTOR: | ||||
| LINCOLN PARK CAPITAL FUND, LLC | ||||
| BY: | LINCOLN PARK CAPITAL, LLC | |||
| BY: | XXXX XXXX INVESTORS, INC. | |||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | President | |||
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