EXHIBIT 10.1
CYTOGEN CORPORATION
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered into
as of June 18, 2001, by and among Cytogen Corporation, a Delaware corporation
(the "Company"), and the State of Wisconsin Investment Board (the "Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of 1,820,000 shares (the "Shares") of common stock, par
value $.01 per share (the "Common Stock"), of the Company.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 Purchase and Sale
---------------------
Subject to the terms and conditions of this Agreement, the Purchaser
agrees to purchase, and the Company agrees to sell and issue to the Purchaser,
at the Closing (as defined below) 1,820,000 Shares.
2.2 Purchase Price
------------------
The purchase price of each Share shall be $4.50 (the "Per Share Price").
The Company shall not, during the period beginning on the date of this Agreement
and ending ninety (90) days after the Closing Date (as defined below), without
adjusting the price per Share hereunder accordingly, sell (i) shares of its
Common Stock (excluding any shares of Common Stock issued pursuant to
convertible securities or warrants outstanding as of the date of this Agreement
or any shares of Common Stock issued in connection with the Company's Employee
Stock Purchase Plan (the "Employee Stock Purchase Plan"), the Company's stock
option plans or the Company's 401(k) Plan provided that the granting of stock
options from the date hereof must conform to the requirements of Section 7.2) at
a price per share of less than the Per Share Price, or (ii) options, warrants or
any other securities that can be converted into, or otherwise exchanged for,
shares of the Company's Common Stock at a conversion, exchange or exercise price
per share of less than the Per Share Price. In the event the Company shall,
during the period beginning on the date of this Agreement and ending ninety (90)
days after the Closing Date, sell any shares of the Company's Common Stock at,
or any instruments that can be converted into or otherwise exchanged for the
Company's Common Stock (the "Subsequent Sale") exercisable at, a price per Share
(the "Subsequent Purchase Price") of less than the Per Share Price, the Company
shall, within ten (10) business days of the Subsequent Sale, pay to the
Purchaser a cash amount equal to the number of Shares purchased by the Purchaser
hereunder times the difference between the Per Share Price and the Subsequent
Purchase Price.
3. DELIVERY OF THE SHARES AT THE CLOSING
3.1 The completion of the purchase and sale of the Shares (the "Closing")
shall occur at the offices of Xxxx and Xxxx LLP, counsel to the Company, at 000
Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 at 11:00 a.m. local time on
Tuesday, June 19, 2001, or such other time and date as may be agreed by the
parties (the "Closing Date").
3.2 At the Closing, the Company shall authorize its transfer agent (the
"Transfer Agent") to issue to the Purchaser two (2) stock certificates
registered in the name of the Purchaser, or in such nominee name(s) as
designated by the Purchaser in writing and as follows: the Company will deliver
one certificate representing 1,456,000 Shares and one certificate representing
364,000 Shares (the "Certificates") against delivery of payment for the Shares
by the Purchaser. Prior to the Purchaser's delivery of payment for the Shares,
the Company will deliver via facsimile a copy of the Certificates to be
delivered upon Closing to the office of the Purchaser (at the fax number
indicated on the signature page attached hereto).
3.3 The Company's obligation to complete the purchase and sale of the
Shares shall be subject to the following conditions, any one or more of which
may be waived by the Company:
(a) receipt by the Company of same-day funds in the full amount of the
purchase price for the Shares being purchased under this Agreement; and
(b) the accuracy in all material respects of the representations and
warranties made by the Purchaser and the fulfillment in all material respects of
those undertakings of the Purchaser to be fulfilled before the Closing.
3.4 The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by
the Purchaser with respect to such Purchaser's obligation:
(a) the representations and warranties made by the Company in this
Agreement shall be accurate in all material respects and the undertakings of the
Company shall have been fulfilled in all material respects on or before the
Closing;
(b) the Company shall have delivered to the Purchaser a certificate
executed by the chairman of the board or president and the chief financial or
accounting officer of the Company, dated the Closing Date, in form and substance
reasonably satisfactory to the Purchaser, to the effect that the representations
and warranties of the Company set forth in Section 4 hereof are true and correct
in all material respects as of the date of this Agreement and as of the Closing
Date, if later, and that the Company has complied with all the agreements and
satisfied all the conditions in this Agreement on its part to be performed or
satisfied on or before the Closing Date; and
(c) the Company shall have delivered to Purchaser a legal opinion in
substantially the form attached hereto as Exhibit A.
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4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows
(which representations and warranties shall be deemed to apply, where
appropriate, to each subsidiary of the Company).
4.1 Organization and Qualification
----------------------------------
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter into
and perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings, assets
or business affairs of the Company.
4.2 Capitalization
------------------
(a) The authorized capital stock of the Company consists of 250,000,000
shares of Common Stock, $.01 par value, and 5,400,000 shares of Preferred Stock,
$.01 par value, 200,000 of which are designated as Series C Junior Participating
Preferred Stock, $.01 par value.
(b) As of June 15, 2001, the issued and outstanding capital stock of the
Company consists of 77,887,369 shares of Common Stock. The shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable, have not been issued in violation of
or are not otherwise subject to any preemptive or other similar rights and will
not constitute "restricted securities" within the meaning of Rule 144(a)(3)
promulgated under the Securities Act of 1933, as amended (the "Securities Act")
except for the shares issued by the Company in connection with the acquisition
of Prostagen, Inc. in June 1999.
(c) The Company has reserved 7,055,042 shares of Common Stock for issuance
upon the exercise of stock options granted or available for future grant under
the Company's stock option plans or to be issued pursuant to the Employee Stock
Purchase Plan.
(d) The Company has reserved 309,630 shares of Common Stock for issuance
upon the exercise of outstanding warrants to purchase Common Stock.
(e) The Company has, as of June 15, 2001, reserved 919,355 shares of
Common Stock for issuance upon the conversion of an outstanding promissory note,
which number of shares may increase in the event the Company issues or is deemed
to have issued shares of its Common Stock below the conversion price set forth
therein.
(f) The Company has reserved 950,000 shares of Common Stock for issuance
pursuant to the satisfactory termination of certain obligations assumed in the
Company's acquisition of Prostagen, Inc.
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With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock.
4.3 Issuance, Sale and Delivery of the Shares
---------------------------------------------
(a) The Shares have been duly authorized for issuance and sale to the
Purchaser pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances and will not
constitute "restricted securities" within the meaning of the Securities Act. The
certificates evidencing the Shares are in due and proper form under the Delaware
General Corporation Law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights. No further approval or authority of the stockholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Shares to be sold by the Company as contemplated in this Agreement.
4.4 Financial Statements
------------------------
The financial statements included (as exhibits or otherwise) in the
Disclosure Documents (as defined below) present fairly the financial position of
the Company as of the dates indicated and the results of their operations for
the periods specified. Except as otherwise stated in such Disclosure Documents,
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and any supporting
schedules included with the financial statements present fairly the information
stated in the financial statements. The financial and statistical data set forth
in the Disclosure Documents were prepared on an accounting basis consistent with
such financial statements.
4.5 No Material Change
----------------------
Since March 31, 2001,
(a) there has been no material adverse change or any development involving
a prospective material adverse change in or affecting the condition, financial
or otherwise, or in the earnings, assets or business affairs of the Company,
whether or not arising in the ordinary course of business;
(b) there have been no transactions entered into by the Company other than
those in the ordinary course of business, which are material with respect to the
Company; and
(c) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
The Company has no material contingent obligations.
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4.6 Environmental
-----------------
Except as would not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or the
earnings, assets or business affairs of the Company:
(a) the Company is in compliance with all applicable Environmental Laws
(as defined below);
(b) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals;
(c) there are no pending or, to the best knowledge of the Company,
threatened Environmental Claims (as defined below) against the Company; and
(d) under applicable law, to the best of the Company's knowledge there are
no circumstances with respect to any property or operations of the Company that
are reasonably likely to form the basis of an Environmental Claim against the
Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
4.7 No Defaults
---------------
The Company is not in violation of its certificate of incorporation or
bylaws or in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or material agreement to which the
Company is a party or by which it may be bound, or to which any of the property
or assets of the Company is subject.
4.8 Labor Matters
-----------------
No material labor dispute with the employees of the Company exists or, to
the best knowledge of the Company, is imminent.
4.9 No Actions
--------------
Except as set forth in the Disclosure Documents, there is no action, suit
or proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the
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knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, might result in any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company, or which, singly or in the aggregate, might materially and adversely
affect the properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement, nor, to the best knowledge of the
Company, is there any reasonable basis therefor. The Company is not in default
with respect to any judgment, order or decree of any court or governmental
agency or instrumentality which, singly or in the aggregate, would have a
material adverse effect on the assets, properties or business of the Company.
4.10 Intellectual Property
--------------------------
(a) The Company, to the best of its knowledge owns or is licensed to use
all patents, patent applications, inventions, trademarks, service marks, trade
names, applications for registration of trademarks and service marks,
copyrights, know-how, manufacturing processes, formulae, trade secrets and any
other intangible property and assets that are material to the business of the
Company as now conducted and as proposed to be conducted (in this Agreement
called the "Proprietary Rights"), or is seeking, or will seek, to obtain rights
to use such Proprietary Rights that are material to the business of the Company
as proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company has not
received any notice of, any pending conflicts with or infringement of the rights
of others with respect to any Proprietary Rights or with respect to any license
of Proprietary Rights which are material to the business of the Company.
(c) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the knowledge of the Company,
threatened, which involves any Proprietary Rights, nor, to the knowledge of the
Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any arbitrator, and has not entered into or is not a party to any
contract which restricts or impairs the use of any such Proprietary Rights in a
manner which would have a material adverse effect on the use of any of the
Proprietary Rights.
(e) The Company has not received written notice of any pending conflict
with or infringement upon third-party proprietary rights.
(f) The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business. No claims have been asserted by
any person with respect to the validity of the Company's ownership or right to
use the Proprietary Rights and, to the best knowledge of the Company, there is
no reasonable basis for any such claim to be successful.
(g) The Company has complied, in all material respects, with its
obligations relating to the protection of the Proprietary Rights which are
material to the business of the Company used pursuant to licenses.
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(h) To the knowledge of the Company, no person is infringing on or
violating the Proprietary Rights.
4.11 Permits
------------
The Company possesses and is operating in compliance with all material
licenses, certificates, consents, authorities, approvals and permits from all
state, federal, foreign and other regulatory agencies or bodies necessary to
conduct the businesses now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any such
permit or any circumstance which would lead it to believe that such proceedings
are reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets or business
affairs of the Company.
4.12 Due Execution, Delivery and Performance
--------------------------------------------
(a) This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement, including the sale, issuance and
delivery of the Shares, (i) have been duly authorized by all necessary corporate
action on the part of the Company, its directors and stockholders; (ii) will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or
other instrument or agreement to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the Company is subject;
(iii) will not trigger anti-dilution rights or other rights to acquire
additional equity securities of the Company; and (iv) will not result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
4.13 Properties
---------------
The Company has good and marketable title to its properties, free and
clear of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real property held under lease by the Company is held
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company.
The Company owns or leases all such properties as are necessary to its business
or operations as now conducted.
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4.14 Compliance
---------------
The Company has conducted and is conducting its business in compliance
with all applicable Federal, state, local and foreign statutes, laws, rules,
regulations, ordinances, codes, decisions, decrees, directives and orders,
except where the failure to do so would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets or business affairs of the Company.
4.15 Security Measures
----------------------
The Company takes security measures designed to enable the Company to
assert trade secret protection in its non-patented technology.
4.16 Contributions
------------------
To the Company's knowledge, neither the Company nor any employee or agent
of the Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation.
4.17 Use of Proceeds; Investment Company
----------------------------------------
The Company intends to use the proceeds from the sale of the Shares for
working capital and other general corporate purposes. The Company is not now,
and after the sale of the Shares under this Agreement and under all other
agreements and the application of the net proceeds from the sale of the Shares
described in the proceeding sentence will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
4.18 Prior Offerings
--------------------
All offers and sales of capital stock of the Company before the date of
this Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
4.19 Taxes
----------
The Company has filed all material tax returns required to be filed, which
returns are true and correct in all material respects, and the Company is not in
default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
4.20 Other Governmental Proceedings
-----------------------------------
To the Company's knowledge, there are no rulemaking or similar proceedings
before any Federal, state, local or foreign government bodies that involve the
Company, which, if the subject of an action unfavorable to the Company, could
involve a prospective material adverse
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change in or effect on the condition, financial or otherwise, or in the
earnings, assets or business affairs of the Company.
4.21 Non-Competition Agreements
-------------------------------
To the knowledge of the Company, any full-time employee who has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company is neither in violation of nor
is expected to be in violation of that agreement as a result of the business
currently conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 Transfer Taxes
-------------------
On the Closing Date, all stock transfer or other taxes (other than income
taxes) that are required to be paid by the Company in connection with the sale
and transfer of the Shares to be sold to the Purchaser under this Agreement will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.23 Insurance
--------------
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering all real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 Governmental/ Regulatory Consents
--------------------------------------
All registration, authorization, approval, qualification or consent with
or required by any court or governmental/ regulatory authority or agency that is
necessary in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Shares under this Agreement have been
obtained.
4.25 Securities and Exchange Commission Filings
-----------------------------------------------
The Company has timely filed with the Securities and Exchange Commission
(the "Commission") all documents required to be filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act.")
4.26 Disclosure Documents
-------------------------
The Company represents and warrants that the information contained in the
following documents (the "Disclosure Documents"), which have been provided to
Purchaser is or will be true and correct in all material respects as of their
respective final dates and do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
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necessary to make the statements therein not misleading in light of the
circumstances in which they were made:
(a) the Company's Registration Statement on Form S-3 (Registration
Statement No. 333-33436 attached hereto as Exhibit B) (including all exhibits
thereto and all information and documents incorporated by reference therein, the
"Registration Statement"), which includes the registration of the original
issuance of the Shares of Common Stock purchased by the Purchaser pursuant to
this Agreement, and the Company's Prospectus dated June 19, 2001 included in the
Registration Statement;
(b) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(c) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2001;
(d) the Company's Proxy Statement for its 2001 Annual Meeting of
Shareholders; and
(e) all other documents, if any, filed by the Company with the Commission
since December 31, 2001 pursuant to the reporting requirements of the Securities
Exchange Act.
4.27 Registration Statement
---------------------------
The Registration Statement has become effective under the Securities Act,
and no stop order proceedings with respect thereto have been instituted or are
pending or, to the best of the Company's knowledge, threatened under the
Securities Act and nothing has come to our attention to lead us to believe that
such proceedings are contemplated.
4.28 Contracts
--------------
The contracts described in the Disclosure Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a material adverse effect on the business, properties or assets
of the Company. Neither the Company nor, to the knowledge of the Company, any
other party is in material breach of or default under any such contracts.
4.29 Listing of Shares
----------------------
The Company agrees to promptly secure the listing of the Shares upon each
national securities exchange or automated quotation system upon which shares of
Common Stock are then listed and, so long as any Purchaser owns any of the
Shares, shall maintain such listing of all Shares. The Company has taken no
action designed to delist, or which is likely to have the effect of delisting,
the Common Stock from any national securities exchange or automated quotation
system upon which the shares of Common Stock are then listed.
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4.30 No Manipulation of Stock
-----------------------------
The Company has not taken and will not, in violation of applicable law,
take any action outside the ordinary course of business designed to or that
might reasonably be expected to cause or result in unlawful manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents, warrants and covenants to the Company as
follows:
5.1 This Agreement has been duly executed and delivered by the Purchaser
and constitutes a valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
5.2 The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action on the part of the Purchaser, its directors, trustees
and other requisite parties and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Purchaser pursuant to,
any contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Purchaser is subject, nor will such
execution, delivery and performance result in any violation of the provisions of
the charter or bylaws of the Purchaser or any applicable statute, law, rule,
regulation, ordinance, decision, directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser in this Agreement and in the certificates for the Shares delivered
pursuant to this Agreement shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment therefor
for a period of eighteen (18) months.
7. INDEMNIFICATION; STOCK OPTION MATTERS
7.1 Indemnification
-------------------
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless the Purchaser, each person, if any, who controls the Purchaser
within the meaning of Section 15 of the Securities Act and each officer,
director, employee and agent of the Purchaser and of any such controlling person
against any and all liabilities, claims, damages or expenses whatsoever, as
incurred arising out of or resulting from any breach or alleged breach or other
violation of any representation, warranty, covenant or undertaking by the
Company contained in this Agreement, and the Company will reimburse the
Purchaser for its reasonable legal and other
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expenses (including the reasonable cost of any investigation and preparation,
and including the reasonable fees and expenses of counsel) incurred in
connection therewith.
(b) Indemnification by the Purchaser. The Purchaser agrees to indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act and each officer,
director, employee and agent of the Company and of any such controlling person
against any and all losses, liabilities, claims, damages or expenses whatsoever,
as incurred arising out of or resulting from any breach or alleged breach or
other violation or alleged violation of any representation, warranty, covenant
or undertaking by the Purchaser contained in this Agreement, and the Purchaser
will reimburse the Company for its reasonable legal and other expenses
(including the reasonable cost of any investigation and preparation, and
including the reasonable fees and expenses of counsel) incurred in connection
therewith.
7.2 Stock Option Matters and Prohibition on Toxics
--------------------------------------------------
The Company shall, within thirty (30) days of the Closing Date, adopt such
amendments to, with respect to (a) and (b) below, the Company's stock option
plans and By-laws, and with respect to (c) and (d) below, the Company's By-laws
(together, the "Stock Option Plan and By-law Amendments") to provide that,
unless approved by the holders of majority of the shares present and entitled to
vote at a duly convened meeting of shareholders, the Company shall not:
(a) grant any stock options with an exercise price that is less than 100%
of the fair market value of the underlying stock on the date of grant;
(b) reduce the exercise price of any stock option granted under any
existing or future stock option plan;
(c) sell or issue any security of the Company convertible, exercisable or
exchangeable into shares of common stock of the Company, having a conversion,
exercise or exchange price per share which is subject to downward adjustment
based on the market price of the common stock at the time of conversion,
exercise or exchange of such security into common stock (except for appropriate
adjustments made to give effect to any stock splits or stock dividends); or
(d) enter into (a) any equity line or similar agreement or arrangement; or
(b) any agreement to sell common stock of the Company (or any security
convertible, exercisable or exchangeable into shares of common stock ("Common
Stock Equivalent")) at a per share price (or, with respect to a Common Stock
Equivalent, at a conversion, exercise or exchange price, as the case may be
("Equivalent Price")) that is fixed after the execution date of the agreement,
whether or not based on any predetermined price-setting formula or calculation
method. Notwithstanding the foregoing, however, a price protection clause shall
be permitted in an agreement for sale of Common Stock or Common Stock
Equivalent, if such clause provides for an adjustment to the price per share of
Common Stock or, with respect to a Common Stock Equivalent, to the Equivalent
Price (provided that such price or Equivalent Price is fixed on or before the
execution date of the agreement)(the "Fixed Price") in the event that the
Company, during the period beginning on the date of the agreement and ending no
later than 90 days after
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the closing date of the transaction, sells shares of Common Stock or Common
Stock Equivalent to another investor at a price or Equivalent Price, as the case
may be, below the Fixed Price.
The Stock Option Plan and By-law Amendments may not be further amended or
repealed without the affirmative vote of the holders of a majority of the shares
present and entitled to vote at a duly convened meeting of shareholders. Upon
the adoption of the Stock Option Plan and By-law Amendments, the Company shall
promptly furnish a copy of such amendments to the Purchasers. The Company agrees
that prior to the adoption of the Stock Option Plan and By-law Amendments by all
necessary corporate action of the Company as described above, the Company shall
not conduct any of the actions specified in (a), (b), (c) or (d) above of this
Section 7.2.
7.3 Other Financing Arrangements
--------------------------------
The Company hereby convenants and agrees that it shall not obtain
additional funding under that certain Common Stock Purchase Agreement, dated as
of October 4, 2000, by and between the Company and Acqua Wellington North
American Equities Fund, Ltd.
8. LEGAL FEES AND OTHER TRANSACTION EXPENSES
At the Closing, the Company agrees to pay a flat fee of $5,000 to the
State of Wisconsin Investment Board for their legal and other transaction
expenses (whether internal or external) arising in connection with the
transactions contemplated by this Agreement.
9. BROKER'S FEE
Each of the parties to this Agreement hereby represents that, on the basis
of any actions and agreements by it, there are no brokers or finders entitled to
compensation in connection with the sale of the Shares to the Purchaser. Each of
the parties to this Agreement shall indemnify and hold harmless the other from
and against all fees, commissions or other payments owing by such indemnifying
party to any person or firm acting on behalf of the Company hereunder.
10. NOTICES
All notices, requests, consents and other communications under this
Agreement shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be delivered as addressed as follows:
(a) if to the Company, to:
Cytogen Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: H. Xxxxxx Xxxxxx
cc: Xxxxxxxxx X. Xxxxx, Esq.
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or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to a Purchaser, at its address as set forth on the signature page
to this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of receipt
by facsimile, one business day after deposit with such overnight courier or
three days after deposit of such registered or certified airmail with the U.S.
Postal Service, as applicable.
11. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
12. TERMINATION
This Agreement may be terminated by either party if the Closing has not
occurred on or before thirty (30) days from the date of this Agreement.
13. HEADINGS
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be part of this
Agreement.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of the state of Delaware and the federal law of the United States of
America.
16. NO CONFLICTS OF INTEREST
The Company represents, warrants, and covenants that, to the best of its
knowledge, no trustee or employee of the State of Wisconsin Investment Board
identified on the attached Exhibit C, either directly or indirectly (a)
currently holds a personal interest in the Company or any of its affiliates
(together, the "Entity") or the Entity's property or securities, or (b) will, in
connection with the investment made pursuant to this Agreement, receive (i) a
personal interest in the Entity or the Entity's property or securities or (ii)
anything of substantial economic value for his or her private benefit from the
Entity or anyone acting on its behalf.
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As to ownership of an interest in the Entity's publicly traded securities,
"knowledge" hereunder is based on an examination of record holders of the
Entity's securities and actual knowledge of the undersigned.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party to this Agreement and delivered to
the other party.
*******
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
CYTOGEN CORPORATION
By /s/ H. Xxxxxx Xxxxxx
-------------------------------------
Name: H. Xxxxxx Xxxxxx
Its: President and Chief Executive Officer
STATE OF WISCONSIN INVESTMENT BOARD
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Investment Director
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
- 16 -
EXHIBIT A
FORM OF OPINION
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of . The Company is qualified
to do business as a foreign corporation and is in good standing in the
State(s) of . The Company has the requisite corporate power to
own or lease its property and assets and to conduct its business as currently
conducted.
2. The execution, delivery and performance of the Agreement have been duly
authorized by all necessary corporate action on the part of the Company, its
directors and stockholders. The Agreement has been duly executed and
delivered on behalf of the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws of general
applicability relating to or affecting creditors' rights, and (ii) as limited
by equitable principles generally and limitations on the availability of
equitable remedies, whether such enforceability is considered in a proceeding
in equity or at law.
3. As of the date hereof, the authorized capital stock of the Company
consists of . The issued and outstanding capital stock of the Company
consists of .
4. The sale, issuance and delivery of the Shares have been duly authorized by
all necessary corporate action on the part of the Company, its directors and
stockholders. When issued, delivered and paid for in accordance with the
terms of the Agreement, the Shares will be validly issued, fully paid and
nonassessable, free of any pre-emptive or similar rights, and will not
constitute "restricted securities" within the meaning of Rule 144(a)(3)
promulgated under the Securities Act of 1933, as amended (the "Securities
Act").
5. Except as set forth in the Agreement, to our knowledge there is no action,
proceeding or investigation pending or overtly threatened in writing against
the Company which could reasonably be anticipated to result, either
individually or in the aggregate, in any material adverse change in the
assets, financial condition or operations of the Company, or which questions
the validity or enforceability of, or seeks to enjoin or invalidate, the
Agreement or any action to be taken by the Company in connection therewith.
6. The execution, delivery and performance of the Agreement by the Company and
the consummation of the sale, issuance and delivery of the Shares by the
Company as contemplated therein, do not conflict with or violate any
provisions of the Company's Certificate of Incorporation or By-laws; or any
provision of any applicable federal or state law, statute, rule or
regulation; or any material agreements to which the Company is a party.
7. All consents, approvals, authorizations, or orders of, and filings,
registrations and qualifications with or required by any regulatory or
governmental body or authority in the United States necessary for the
issuance by the Company of the Shares as contemplated by the Agreements, have
been made or obtained.
8. The Registration Statement has become effective under the Securities Act and,
to the best of our knowledge, no stop order proceedings with respect thereto
have been instituted or are pending or threatened under the Securities Act
and nothing has come to our attention to lead us to believe that such
proceedings are contemplated.
9. To the best of our knowledge, the Registration Statement and Prospectus do
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which they
were made.
EXHIBIT B
REGISTRATION STATEMENT
EXHIBIT C
TRUSTEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
Xxx X. Xxxxxx Xxxxx XxXxxxxxx
Xxxx Xxxxxxxx III Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxxx Xxxxx X. Xxxxxx
Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
RELEVANT EMPLOYEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
All Transactions
----------------
Xxxxxxxx Xxxxxx Executive Director
Xxxxxx Xxxxxx Chief Investment Officer - Equities
Xxxxx Xxxxxxx Chief Legal Counsel
Xxxxxx Xxx Assistant Legal Counsel
Xxxxxxx Xxxxxxx Assistant Legal Counsel
Xxx Xxxxxx Chief Investment Officer - Fixed Income
For Real Estate Transactions
----------------------------
Xxxxxx Xxxxxxxxx Investment Director
Xxxxx Xxxxxxxxx Assistant Investment Director
Xxxx Xxxxxxxxxxx Investment Officer
Xxxxx Xxxxxxxxxx Investment Officer
For Private Placement Loans
---------------------------
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxx Portfolio Manager
Xxxxxx Xxxxxxx Portfolio Manager
For Private Placement Funds & Equity Investments
------------------------------------------------
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxxxx Portfolio Manager
Xxxxxx Xxxxx Assistant Portfolio Manager
Xxx Xxxxx Investment Officer
For Non-traditional Investments
-------------------------------
Xxxx Xxxxxx Investment Director
Xxx Xxxxx Securities Analyst
For Small Cap Portfolio Direct Placements
-----------------------------------------
Xxxx Xxxxxx Investment Director
Xxxx Xxxxxxx Assistant Portfolio Manager
Xxxxxx Xxxxxx Securities Analyst
Xxxx Xxxxxxx Securities Analyst
Xxx Xxxx Securities Analyst
APPENDIX I
CYTOGEN CORPORATION
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
State of Wisconsin Investment Board
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above: same
3. The mailing address of the Registered Holder listed in response to
item 1 above:
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
396006423
