Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this
4th day of February, 2005 by and among Neurologix, Inc., a Delaware corporation
(the "Company"), and the parties set forth on Exhibit A hereto (each, a
"Purchaser", and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and to sell to the Purchasers,
and the Purchasers severally desire to purchase from the Company, shares ("the
Shares") of the Company's common stock, par value $0.001 per share (the "Common
Stock"), and warrants to purchase shares of Common Stock (the "Warrants")
pursuant to the warrant certificate substantially in the form attached hereto
as Exhibit A (the "Warrant Certificate"), all in accordance with the terms and
provisions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each Purchaser
hereby agree as follows:
Section 1. Purchase and Sale of Securities.
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(a) Upon the terms and subject to the conditions herein contained,
at the Closing (as defined in Section 2.1), the Company shall issue and sell to
each Purchaser, and each Purchaser shall purchase from the Company, such number
of Shares and Warrants set forth opposite such Purchaser's name on Exhibit A
for the aggregate purchase price set forth opposite such Purchaser's name on
Exhibit A (the "Purchase Price").
Section 2. The Closing.
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2.1. The Closing. (a) The purchase and sale of the Shares and
Warrants by each Purchaser upon the terms and conditions hereof shall take
place at a closing (the "Closing") to be held at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00
a.m. on the date set forth opposite such Purchaser's name on Exhibit A (the
"Closing Date").
(b) The Company shall have provided wire transfer instructions to
each Purchaser for the payment of the Purchase Price prior to the Closing.
(c) The Closing shall be subject to the satisfaction or waiver by
the Company and each Purchaser of the conditions set forth in Sections 2.2(b)
and (a), respectively.
2.2. Conditions to Closing.
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(a) The Company's obligation to complete the purchase and sale of
the Shares and Warrants is subject to:
(i) receipt by the Company of immediately available
funds in the full amount of the Purchase Price from each Purchaser, in
accordance with the wire transfer instructions delivered by the Company to
each Purchaser pursuant to Section 2.1(b);
(ii) the accuracy in all material respects of the
representations and warranties made by each Purchaser in Section 4 below
as of the date hereof and the Closing Date and the fulfillment in all
material respects of those undertakings of each Purchaser in this
Agreement to be fulfilled on or prior to the Closing Date; and
(iii) each Purchaser's execution and delivery of the Warrant
Certificate and the Registration Rights Agreement substantially in the
form attached hereto as Exhibit B (the "Registration Rights Agreement").
(b) Each Purchaser's obligation to complete the purchase and sale
of the Shares and Warrants is subject to:
(i) the accuracy in all material respects of the
representations and warranties made by the Company in Section 3 below as
of the date hereof and the Closing Date and the fulfillment in all
material respects of those undertakings of the Company in this Agreement
to be fulfilled on or prior to the Closing Date;
(ii) the Company's delivery to each Purchaser of one or more
certificates representing the Shares being purchased by such Purchaser,
and one or more Warrant Certificates representing the Warrants being
purchased by such Purchaser; and
(iii) the Company's execution and delivery of the
Registration Rights Agreement.
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2.3. Anti-Dilution Provision.
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(a) If the Company shall, at any time prior to the first
anniversary of the Closing Date, issue any shares of Common Stock, options to
purchase or rights to subscribe for Common Stock, securities by their terms
convertible into or exchangeable for Common Stock, or options to purchase or
rights to subscribe for such convertible or exchangeable securities for
consideration per share less than $1.30 (as appropriately adjusted for any
stock split, combination, reorganization, recapitalization, reclassification,
stock dividend or stock distribution), then within 14 days of such issuance,
the Company shall issue to each Purchaser a number of shares of Common Stock
such that the total number of shares of Common Stock issued to such Purchaser
pursuant to Section 1 and this Section 2.3 is equal to such Purchaser's
Purchase Price set forth on Schedule A hereto divided by the Adjusted Per Share
Purchase Price. For the purposes of this Section 2.3, "Adjusted Per Share
Purchase Price" shall mean (a) $1.30 multiplied by (b) a fraction of which (x)
the numerator shall be the sum of (i) the number of shares of Common Stock
outstanding on a fully-diluted basis immediately prior to such issuance and
(ii) the number of additional shares of Common Stock which the aggregate
consideration for the number of shares of Common Stock so offered would
purchase at a price of $1.30 per share and (y) the denominator shall be the
number of shares of Common Stock outstanding on a fully-diluted basis
immediately after such issuance.
(b) Notwithstanding Section 2.3(a), adjustments shall be made
pursuant to this Section 2.3 only until the first date following the Closing
Date on which the aggregate net consideration received by the Company in
connection with all issuances of Common Stock, options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock, or options to purchase or rights to subscribe
for such convertible or exchangeable securities between the date hereof and
such date for a per share consideration of less than $1.30 is greater than or
equal to $2,000,000; provided, however, that if such aggregate consideration on
such date exceeds $2,000,000, such adjustment shall be made only with respect
to the first $2,000,000 in such Common Stock, options, rights or securities
issued.
(c) For purposes of this Section 2.3, "fully diluted basis" shall
be determined in accordance with Generally Accepted Accounting Principles.
Section 3. Representations, Warranties and Covenants of the Company.
The Company hereby represents and warrants to each Purchaser as of the Closing
Date (or such other date specified below) as follows:
3.1. Organization and Qualification. Each of the Company and
Neurologix Research, Inc., a Delaware corporation and wholly-owned Subsidiary
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of the Company ("NRI"), is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. All of the outstanding
shares of capital stock of the Company and NRI are validly issued, fully paid
and non-assessable, and all such shares of NRI are owned by the Company free
and clear of any liens, claims or encumbrances and not subject to any option or
right to purchase any such shares. Except for NRI, and 38,840 shares of common
stock of Alacra, Inc. held by the Company, the Company has no other equity
interest in any corporation, partnership, joint venture, limited liability
company or other Person (as defined below). Each of the Company and NRI is duly
qualified as a foreign corporation to do business and is in good standing (to
the extent such concepts are applicable) in every jurisdiction in which its
ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect (as
defined below).
(a) For the purposes of this Agreement:
(i) "Subsidiary" shall mean any corporation, association,
trust, limited liability company, partnership, joint venture or other
business association or entity (i) at least 50% of the outstanding voting
securities of which are at the time owned or controlled, directly or
indirectly, by the Company; or (ii) with respect to which the Company
possesses, directly or indirectly, the power to direct or cause the
direction of the affairs or management of such Person.
(ii) "Person" shall mean an individual, corporation, limited
liability company, joint venture, partnership, trust, unincorporated
organization, government or any agency or political subdivision thereof or
any other entity that may be treated as a person under applicable law.
(iii) "Material Adverse Effect" shall mean any material
adverse effect , or any development that could reasonably be expected to
result in a material adverse effect, on the business, properties, assets,
operations, results of operations or condition (financial or otherwise) of
a Person and its Subsidiaries, taken as a whole, or on the transactions
contemplated hereby or by the agreements and instruments to be entered
into in connection herewith, or on the authority or ability of such Person
to timely perform its obligations under this Agreement, the Registration
Rights Agreement and the Warrant Certificate (collectively, the
"Transaction Documents").
3.2. Authorization, Enforcement and Validity. The Company has the
requisite corporate power and authority to enter into and perform its
obligations under the Transaction Documents and to issue the Shares, the
Warrants and the shares of Common Stock issuable upon exercise of the Warrants
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(the "Warrant Shares") in accordance with the terms thereof. The execution and
delivery by the Company of the Transaction Documents and the consummation by it
of the transactions contemplated thereby have been duly authorized by the
Company's Board of Directors and no further consent or authorization is
required of the Company's Board of Directors. No authorization or consent by
any stockholders of the Company is required for execution and delivery by the
Company of the Transaction Documents and the consummation by it of the
transactions contemplated thereby. Upon the execution and delivery of such
Transaction Documents, such Transaction Documents 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 or
except to the extent indemnification provisions contained in the Transaction
Documents may be limited by applicable federal or state securities laws.
3.3. Capitalization. The authorized capital stock of the Company
consists of 60,000,000 shares of Common Stock and 5,000,000 shares of preferred
stock, par value $0.10 per share (the "Preferred Shares"), of which 300,000
shares have been designated Series A Preferred Stock (the "Series A Preferred
Stock"). As of January 28, 2005, (x) 22,521,404 Common Stock shares are issued
and outstanding, and 645 Series A Preferred Stock are issued and outstanding,
(y) 2,643,458 shares of Common Stock are reserved for issuance upon exercise of
outstanding options to purchase Common Stock shares and (z) 828,000 shares of
Common Stock are reserved for issuance upon exercise of warrants to purchase
Common Stock (the "Old Warrants"). Except as set forth in this Section 3.3 and
as contemplated by this Agreement, there are no outstanding options, warrants,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. The issuance and sale of the Shares
and Warrants hereunder will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under
such securities.
3.4. Issuance Of Shares. The Shares and the Warrant Shares are duly
authorized and, upon issuance in accordance with the terms of this Agreement
and the Warrant Certificate, as the case may be, shall be validly issued, fully
paid and non-assessable, and shall not be subject to preemptive rights or other
similar rights of any other Person. The Company has duly reserved for issuance
upon exercise of the Warrants a number of shares of Common Stock equal to the
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number of Warrant Shares issuable upon exercise of all Warrants purchased by
the Purchasers hereunder.
3.5. No Conflicts. The execution, delivery and performance by the
Company of the Transaction Documents to which it is a party and the
consummation by the Company of the transactions contemplated thereby will not
(i) result in a violation of the Company's certificate of incorporation or
bylaws; (ii) conflict with, constitute a default under or give to others any
rights of termination, cancellation or amendment or acceleration of, any
material agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party; or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Company or any of its
Subsidiaries, except to the extent that such violation would not have a
Material Adverse Effect.
3.6. SEC Documents; Financial Statements. Since January 1, 2004,
the Company has filed all documents required to be filed by it prior to the
date hereof with the Securities and Exchange Commission (the "SEC") pursuant to
the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (the "SEC Documents"). As of the date of filing thereof,
each SEC Document complied in all material respects with the requirements of
the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to such SEC Document. None of the SEC Documents, as of
the date 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.
3.7. Litigation. There are no actions, suits, arbitrations or
proceedings, including any governmental proceeding, pending, or to the
knowledge of the Company, threatened, against, relating to or affecting the
Company or any of its Subsidiaries, except as would not have a Material Adverse
Effect.
3.8. Absence Of Certain Changes. Since January 1, 2004, there has
been no change or development that has had either individually or in the
aggregate a Material Adverse Effect.
3.9. Brokers or Finders. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by the Transaction Documents based upon arrangements
made by or on behalf of the Company.
3.10. Solicitation; Other Issuances of Securities. Neither the
Company nor any of its Subsidiaries or affiliates, nor any Person acting on its
or their behalf, (i) has engaged in any form of general solicitation or general
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advertising (within the meaning of Regulation D) in connection with the offer
or sale of the Shares, the Warrants or the Warrant Shares (collectively, the
"Securities"), (ii) has, directly or indirectly, made any offers or sales of
any security or solicited any offers to buy any security that would require
registration of the Securities under the Securities Act, or (iii) has issued
any shares of Common Stock or shares of any series of preferred stock or other
securities or instruments convertible into, exchangeable for or otherwise
entitling the holder thereof to acquire shares of Common Stock which would be
integrated with the sale of the Securities to the Purchasers for purposes of
the Securities Act or of any applicable stockholder approval provisions, nor
will the Company or any of its Subsidiaries or affiliates take any action or
steps that would require registration of any of the Securities under the
Securities Act or cause the offering of the Securities to be integrated with
other offerings. Assuming the accuracy of the representations and warranties of
the Purchasers in Section 4 hereof, the offer and sale of the Securities by the
Company to the Purchasers pursuant to this Agreement will be exempt from the
registration requirements of the Securities Act.
3.11. Registration Rights. Other than the Purchasers, there are no
Persons with registration or other similar rights to have any equity or debt
securities registered for sale.
Section 4. Representations, Warranties and Covenants of the Purchasers.
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Each Purchaser for itself and no other Purchaser, hereby
represents and warrants to the Company as of the Closing Date as follows:
4.1. Organization. Such Purchaser is an entity duly organized and
validly existing in good standing under the laws of its jurisdiction of
organization.
4.2. Authorization, Enforcement, and Validity. Such Purchaser has
the requisite power and authority to enter into each of the Transaction
Documents and to consummate the transactions contemplated thereby. Such
Purchaser has taken all necessary action to authorize the execution, delivery
and performance of the Transaction Documents. Each of the Transaction
Documents, upon the execution and delivery thereof, shall constitute a valid
and binding obligation of such Purchaser enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights and remedies or except to the extent
indemnification provisions contained in the Transaction Documents may be
limited by applicable federal or state securities laws.
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4.3. Investment Experience. Such Purchaser is an accredited
investor within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act.
4.4. Investment Intent And Limitation On Dispositions. Such
Purchaser is acquiring the Securities for its own account for investment only
and has no intention of selling or distributing any of such Securities or any
arrangement or understanding with any other Persons regarding the sale or
distribution of such Securities except in accordance with the provisions of
Section 5 hereof and except as would not result in a violation of the
Securities Act. Such Purchaser shall not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Securities except
in accordance with the provisions of Section 5 or pursuant to and in accordance
with the Securities Act.
4.5. Information And Risk. (a) Such Purchaser has had an
opportunity to discuss the Company's business, management and financial affairs
with its management and also had an opportunity to ask questions and receive
answers of officers of the Company.
(b) Such Purchaser recognizes that an investment in the Securities
involves a high degree of risk, including a risk of total loss of such
Purchaser's investment. Such Purchaser is able to bear the economic risk of
holding the Securities for an indefinite period, and has knowledge and
experience in the financial and business matters such that it is capable of
evaluating the risks of the investment in the Securities.
(c) Such Purchaser has, in connection with such Purchaser's
decision to purchase the Securities, not relied upon any representations or
other information (whether oral or written) other than as set forth in the
representations and warranties of the Company contained herein, the SEC
Documents and the other information described in Section 4.5(a) hereto.
4.6. Disclosures to the Company. Such Purchaser understands that
the Company is relying on the statements contained herein to establish an
exemption from registration under federal and state securities laws.
4.7. Brokers or Finders. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of such Purchaser.
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Section 5. Compliance with the Securities Act.
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5.1. Restrictions on Transferability.
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(a) Each Purchaser agrees that it will not effect any disposition
of the Securities that would constitute a sale within the meaning of the
Securities Act or pursuant to any applicable state securities or Blue Sky laws,
except as contemplated in any registration statement filed pursuant to the
Registration Rights Agreement (a "Registration Statement"), pursuant to the
requirements of Rule 144 promulgated under the Securities Act of 1933 ("Rule
144") (in which case such Purchaser will provide the Company with reasonable
evidence of such Purchaser's compliance therewith) or pursuant to a written
opinion of legal counsel reasonably satisfactory to the Company and addressed
to the Company to the effect that registration is not required in connection
with the proposed transfer; whereupon the holder of such securities shall be
entitled to transfer such securities. Each certificate evidencing the
securities transferred as above provided shall bear the appropriate restrictive
legends as may be required by Section 6 hereof. Such Purchaser shall cause any
proposed transferee of the Securities held by such Purchaser to agree to take
and hold such Securities subject to the provisions and upon the conditions
specified in this Section 5 if and to the extent that such Securities continue
to be restricted securities in the hands of the transferee.
5.2. Termination Of Conditions And Obligations. The conditions
precedent imposed by Section 5.1 above regarding the transferability of the
Securities shall not apply as to any particular number of the Securities
covered by an effective registration statement with respect to such Securities
and shall cease and terminate upon the date on which such Purchaser is eligible
to sell such Securities then held by such Purchaser without registration by
reason of Rule 144 or any other rule of similar effect.
Section 6. Legend.
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(a) Each Purchaser understands and agrees that each certificate or
other document evidencing any of the Shares shall be endorsed with the legend
in the form set forth below, and such Purchaser covenants that such Purchaser
shall not transfer the shares represented by any such certificate without
complying with the restrictions on transfer described in the legend endorsed on
such certificate (unless there is in effect a registration statement under the
Securities Act covering such proposed transfer, such securities have been sold
under Rule 144 or as otherwise permitted by the provisions of Section 5 above)
and understands that the Company will refuse to register a transfer of any
Shares unless the conditions specified in the following legend are satisfied:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
EXCEPT AS SPECIFIED IN THIS LEGEND, SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER SUCH ACT
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE, PLEDGE,
HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION AND ANY
APPLICABLE STATE SECURITIES LAWS, SUBJECT TO DELIVERY OF A WRITTEN OPINION
OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH SALE OR OTHER
TRANSFER."
(b) Such certificates shall not contain any legend (i) following
any sale of such Shares pursuant to an effective Registration Statement or Rule
144, or (ii) if such Shares are eligible for sale under Rule 144. At such time
as a legend is no longer required for certain Shares, the Company shall
promptly following the delivery by a Purchaser to the Company or the Company's
transfer agent of a legended certificate representing such securities, deliver
or cause to be delivered to such Purchaser a certificate representing such
securities that is free from all restrictive and other legends.
Section 7. Appointment of Director.
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7.1. Director. As soon as reasonably practicable (but not later
than 30 days) after the date hereof, the Company's Board of Directors shall be
increased by one Class I director and Xx. Xxxxxxx Xxxxx shall be appointed by
the Board of Directors to fill the vacancy created thereby. From and after the
date of such appointment, for so long as either of Merlin Biomed Long Term
Appreciation Fund LP or Merlin Biomed Offshore Master Fund LP (collectively,
the "Lead Purchasers"), is a stockholder of the Company, at any meeting of
stockholders of the Company called to vote upon the election of Class I
directors of the Company, however called, or at any adjournment thereof or in
connection with any written consent of the holders of Common Stock or in any
other circumstances upon which a vote, consent or other approval with respect
to the election of Class I directors of the Company is sought, the Lead
Purchasers shall be entitled to nominate Xx. Xxxxx for election as a Class I
director of the Company. The term of Class I directors will expire in 2007. For
so long as either of the Lead Purchasers remains a stockholder of the Company,
the Company shall not cause Xx. Xxxxx'x term to expire prior to 2007, provided,
however, that such expiration may occur as a result of a merger, consolidation
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or other business combination, reorganzation or similar transaction involving
the Company or any other corporate action of the Company which results in the
expiration of the terms of the other directors of the Company.
Section 8. Notices.
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(a) All notices, requests, consents and other communications
hereunder 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 as addressed as follows:
if to the Company, to:
Neurologix, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx
Attention: Xxxx X. Xxxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and if to the Purchasers, to the addresses set forth on
Exhibit A,
or at such other address as the parties each may specify by written notice
to the others, and each such notice, request, consent and other
communication shall for all purposes of this Agreement be treated as being
effective or having been given when delivered if delivered personally,
upon receipt of facsimile confirmation if transmitted by facsimile, or, if
sent by mail, at the earlier of its receipt or 72 hours after the same has
been deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and postage prepaid as aforesaid.
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Section 9. Miscellaneous.
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9.1. Amendments.
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(a) Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Lead Purchasers. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Purchaser
and each holder of any Securities purchased under this Agreement at the time
outstanding (including Securities into which such Securities are convertible),
each future holder of all such Securities, and the Company.
(b) Notwithstanding the foregoing, from and after the date hereof
until April 15, 2005, without the prior written consent of any Purchaser, the
Company may amend this Agreement to add additional purchasers of Shares and
Warrants following the date hereof (the "Additional Purchasers"). Any such
amendment shall be effective upon the execution of this Agreement and the other
Transaction Documents by such Additional Purchaser; provided, that each
Additional Purchaser shall be deemed a Purchaser for any and all purposes under
this Agreement and the Transaction Documents and shall be subject to all of the
obligations and receive all of the rights and benefits hereunder and
thereunder.
9.2. Headings. The headings of the various sections of this
Agreement are for convenience of reference only and shall not be deemed to be
part of this Agreement.
9.3. Severability. In the event that any provision in this
Agreement is held to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
9.4. Governing Law And Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law provisions thereof, and the federal law of
the United States of America. The parties hereto agree to submit to the
exclusive jurisdiction of the federal and state courts of the State of New York
with respect to the interpretation of this Agreement or for the purposes of any
action arising out of or related to this Agreement.
9.5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument. In the event that any
signature is delivered via facsimile transmission, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such
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signature is executed) the same with the same force and effect as if such
facsimile signature page were an original hereof.
9.6. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the matters covered herein,
supersedes all prior agreements and understandings with respect to such matters
and executed by and among the Company and any Purchaser, and, except as
specifically set forth herein or therein, neither the Company nor any Purchaser
makes any representation, warranty, covenant or undertaking with respect to
such matters.
9.7. Expenses. Each party hereto shall pay all costs and expenses
incurred by it in connection with the execution and delivery of this Agreement,
and all the transactions contemplated thereby, including fees of legal counsel.
(a) Notwithstanding the foregoing, on the Closing Date, the
Company shall reimburse the Lead Purchasers up to an aggregate of $40,000 for
reasonable legal fees and expenses payable to their outside counsel for legal
services provided to them in connection with the transactions completed on the
Closing Date pursuant to this Agreement. Such reimbursement may, at the
Company's election, be deducted from the Purchase Price payable by the Lead
Purchasers.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their duly authorized representatives as of the
day and year set forth below.
NEUROLOGIX, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary and Treasurer
Dated as of: February 4, 2005
MERLIN BIOMED LONG TERM APPRECIATION FUND LP
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Member of General Partner
Dated as of: February 4, 2005
MERLIN BIOMED OFFSHORE MASTER FUND LP
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Member of General Partner
Dated as of: February 4, 2005
PURCHASERS
---------------------------------- ------------- --------------- ------------------- ------------------------
NUMBER NUMBER OF
NAME AND ADDRESS OF SHARES WARRANTS PURCHASE PRICE CLOSING DATE
---------------------------------- ------------- --------------- ------------------- ------------------------
Merlin Biomed Long Term 230,800 57,700 $300,040 February 4, 2005
Appreciation Fund LP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxx
---------------------------------- ------------- --------------- ------------------- ------------------------
Merlin Biomed Offshore 538,500 134,625 $700,050 February 4, 2005
Master Fund LP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxxxxx
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