AMENDED AND RESTATED INVESTOR SUBSCRIPTION AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED INVESTOR SUBSCRIPTION AGREEMENT
This
Amended and Restated Investor Subscription Agreement (this “Agreement”) is entered into on September
26, 2011 by and between Galena Biopharma, Inc., a Delaware corporation (the “Company”), and
the purchasers identified on the signature page hereto (each a “Purchaser” and together,
the “Purchasers”).
WHEREAS,
the Company and the Purchasers had previously entered into that certain Investor Subscription
Agreement dated September 24, 2011 (the “Prior Agreement”).
WHEREAS, the Company and the
Purchasers, for good and valuable consideration, both desire to amend and restate the Prior
Agreement as set forth in this Agreement.
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires
to issue and sell to the Purchasers, and the Purchasers desire to purchase from the Company,
Company Common Stock as more fully described in this Agreement.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following capitalized terms have
the meanings indicated:
“Aggregate
Shares” means 700,000 shares of Common Stock.
“Closing” means the consummation of the purchase and sale of the Shares pursuant to
Section 2.1.
“Closing Date” means Wednesday, September 28, 20011.
“Commission” means the U.S. Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.0001 per share.
“Material Adverse Effect” has the meaning set forth in Section 3.1(a).
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Price Per Share” means $0.65.
“Shares”
means the shares of Common Stock that each Purchaser will purchase
pursuant to this Agreement, as set forth in Annex A.
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ARTICLE II
PURCHASE AND SALE
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set
forth herein, the Company shall sell, and each Purchaser shall
purchase, each Purchaser’s Shares, with all Shares purchased by the
Purchaser equaling the Aggregate Shares. At the Closing, each
Purchaser shall deliver the product of (i) the Purchase
Price Per Share, multiplied by (ii) each Purchaser’s Shares via wire transfer,
against the Company’s delivery to each Purchaser of such Shares. The Shares shall be
delivered to each Purchaser’s prime brokerage account via DWAC pursuant to instructions to be
provided by the Purchasers on the Closing Date.
2.2 Closing Conditions.
(a) The obligations of the Company hereunder at the Closing with respect to each Purchaser are
subject to the satisfaction of the following conditions:
(i) the accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchaser contained herein; and
(ii) the
delivery by the Purchaser to the Company of the Purchase Price Per Share for the
Shares as set forth in Section 2.1.
(b) The obligations of each Purchaser hereunder at the Closing are subject to the satisfaction
of the following conditions:
(i) the accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Company contained herein;
(ii) the delivery by the Company to the Purchaser of the Shares as set forth in Section 2.1;
(iii) the Common Stock shall be listed for trading on the NASDAQ Capital Market; and
(iv) there shall have been no Material Adverse Effect with respect to the Company since the
date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. As an inducement to the Purchaser
to enter into this Agreement and to purchase the Shares, the Company hereby represents and warrants
to the Purchaser as follows:
(a) Organization and Qualification. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as
currently conducted. The Company is duly qualified to conduct business and is in good standing as
a foreign corporation in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, would not have or reasonably be expected to
result in (i) a material adverse effect on the legality, validity or enforceability of this
Agreement; (ii) a material adverse effect on the results of operations, assets, business, prospects
or consolidated financial condition of the Company and its subsidiary, 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 this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”).
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(b) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into this Agreement and to consummate the transactions contemplated hereby and
otherwise to carry out its obligations thereunder. The execution and delivery of this Agreement by
the Company and the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company. 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, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies
(c) No Conflicts. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated thereby do not and
will not: (i) conflict with or violate any provision of the Company’s certificate of incorporation
or bylaws; or (ii) conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default), give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument to which the Company is a party or by which any property
or asset of the Company is bound or affected; or (iii) conflict with or result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company is bound or affected; or (iv)
conflict with or violate the terms of any agreement by which the Company is bound or to which any
property or asset of the Company is bound or affected, except in the case of each of clauses (ii)
and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.
(d) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of this Agreement, other
than the filing of the Prospectus Supplement.
(e) Issuance of the Shares. The Shares are duly authorized and, when issued and paid
for in accordance with this Agreement, will be duly and validly issued, fully paid and
nonassessable, free and clear of all liens, claims or encumbrances imposed by the Company other
than restrictions on transfer referred to in this Agreement.
(f) Capitalization. The capitalization of the Company is as described in the
Company’s most recent periodic report filed with the Commission. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by this Agreement. The issuance and sale of the Shares will not obligate
the Company to issue shares of Common Stock or other securities to any Person and will not result
in a right of any holder of Company securities to adjust the exercise, conversion, exchange or
reset price under such securities.
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(g) Material Changes. Since the date of the Company’s most recent periodic report
filed with the Commission, there has been no event, occurrence or development that has had or that
could reasonably be expected to result in a Material Adverse Effect.
(h) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable
by the Company to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by this Agreement.
(i) Registration of Offering. The Company’s Registration Statement on Form S-3 (File
No. 333-167025) (the “Registration Statement”) has been declared effective by the
Commission and no stop orders have been issued or, to the knowledge of the Company, are threatened.
The Shares are to be offered and sold pursuant to the Registration Statement and the prospectus
contained therein dated May 21, 2010, which shall be supplemented by a prospectus supplement to be
filed pursuant to Rule 424(b) under the Securities Act of 1933 (the “Prospectus
Supplement”). The Prospectus Supplement will be filed with the Commission in the manner and
within the time period required under Rule 424(b).
3.2 Representations and Warranties of the Purchaser. In order to induce the Company
to enter into this Agreement and to sell and issue the Shares, each Purchaser (severally but not
jointly) hereby represents and warrants to the Company as follows:
(a) Organization; Authority. Such Purchaser is duly formed, validly existing and in
good standing under the laws of Delaware with the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated by this Agreement and otherwise to carry
out its obligations thereunder. The execution and delivery of this Agreement by the Purchaser and
the consummation by it of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Purchaser. This Agreement has been duly executed and delivered
by the Purchaser and constitutes a valid and legally binding obligation of the Purchaser,
enforceable against it in accordance with its terms, except (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other equitable
remedies; and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(b)
Short Sales. From July 21, 2011 through the date of the
Prior Agreement, neither the Purchaser nor
any of its affiliates has made any short sales of, or granted any option for the purchase of or
entered into any hedging or similar transaction with the same economic effect as a short sale.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
4.1
Entire Agreement. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect to such matters, including, without
limitation, the Prior Agreement.
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4.2 Amendments; Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by both the Company and the
Purchasers or, in the case of a waiver, by the party against whom a waiver of any such provision is
sought. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right accruing to it
thereafter.
4.3 Successors and Assigns. No party may assign any of its rights or obligations
under this Agreement without the prior written consent of the other Party; provided, that
this provision shall not limit Purchasers’ rights to transfer the Shares in accordance with all of
the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.
4.4 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the principles of
conflicts of law thereof.
4.5 Attorneys’ Fees. If any action at law or equity, including an action for
declaratory relief, is brought to enforce or interpret any provision of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses from the
other party, which fees and expenses shall be in addition to any other relief, which may be
awarded.
4.6 Counterparts; Facsimile Signatures. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other
parties, it being understood that both parties need not sign the same counterpart. In the event
that any signature is delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature page were an original thereof.
4.7 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 parties 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.
4.8 Fees and Expenses. Each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Investor Subscription Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.
| COMPANY: | GALENA BIOPHARMA, INC. |
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| By: | /s/ Xxxx X. Xxx, Ph.D. | |||
| Xxxx X. Xxx, Ph.D. | ||||
| President and Chief Executive Officer | ||||
| PURCHASERS: | TANG CAPITAL PARTNERS, LP |
|||
| By: | TANG CAPITAL MANAGEMENT, LLC | |||
| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx, Managing Director | ||||
| RTW INVESTMENTS, LLC |
||||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Managing Member | |||
[Signature Page to Subscription Agreement]
Annex A
| Purchaser Name | Number of Shares | Total Purchase Price | ||||||
Tang Capital Partners, LP |
570,999 |
$ | 371,149.35 |
|||||
RTW Investments, LLC |
129,001 |
$ | 83,850.65 |
|||||
Total |
700,000 |
$ | 455,000.00 |
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