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Exhibit 99.1
CONFIDENTIAL
THE SECURITIES PURCHASED PURSUANT TO THIS AGREEMENT ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE AND CANADIAN SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE INVESTOR SHOULD BE AWARE THAT IT WILL BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME,
INCLUDING THE RISKS AS SET FORTH IN THE COMPANY'S REPORTS AND REGISTRATION
STATEMENTS AS FILED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
THE SECURITIES PURCHASED PURSUANT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF CERTAIN STATES OR QUALIFIED FOR DISTRIBUTION UNDER APPLICABLE CANADIAN
SECURITIES LAWS AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES
PURCHASED PURSUANT TO THIS AGREEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION, THE ONTARIO SECURITIES COMMISSION OR OTHER UNITED STATES OR CANADIAN
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THE SECURITIES OFFERED BY THE COMPANY. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
STOCK PURCHASE AGREEMENT
AGREEMENT made as of the __th day of February, 2000, by and between
DUSA PHARMACEUTICALS, INC., a New Jersey corporation, having its principal
executive offices located at 00 Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter referred to as the "Company") and Invesco Global Health Sciences
Fund, a business trust formed under laws of the State of Massachusetts, having
its principal executive offices located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx, 00000 (hereinafter referred to as the "Purchaser").
W I T N E S S E T H
WHEREAS, the Company has issued and outstanding as of the date hereof
12,008,505 shares of common stock, without par value; and
WHEREAS, the Company believes that it is in its best interests to issue
1,500,000 shares of its authorized but unissued common stock to the Purchaser
for the consideration stated herein, and the Purchaser wishes to purchase such
shares on the terms provided herein.
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NOW, THEREFORE, in consideration of the mutual covenants provided
herein, the parties agree as follows:
1. Purchase.
1.1 At the Closing, the Purchaser shall purchase from the
Company, and the Company shall issue and sell to the Purchaser, One Million Five
Hundred Thousand (1,500,000) shares of the Company's common stock (hereinafter
referred to as the "Shares") for the purchase price of United States
Twenty-Eight Dollars and Fifty Cents ($28.50) per Share, or an aggregate price
of United States Forty-Two Million Seven Hundred Fifty Thousand Dollars
($42,750,000) (hereinafter referred to as the "Purchase Price"), at the closing
(the "Closing"). At the Company's sole option and without affecting the
conditions or obligations of the Purchaser under this Stock Purchase Agreement,
the Company may enter into substantially the same form of purchase agreement
with certain other investors (the "Other Purchasers", and, collectively with the
Purchaser, the "Purchasers") to sell shares of its common stock to such Other
Purchasers, provided that (i) the Company may not sell more than 500,000 shares
of common stock in the aggregate to such Other Purchasers for a total offering
by the Company of 2,000,000 shares of common stock (the "Offering") and (ii)
such Other Purchasers agree to purchase such shares on or prior to the date
hereof on terms no less favorable to the Company.
1.2 Payment of the Purchase Price shall be in same day funds
by certified check, bank cashier's check, money order or similar instrument, or
by means of wire transfer due and payable to the Company at the Closing.
1.3 The Closing shall take place at the offices of Lane and
Xxxxxxx, 000 Xxxxx 00 Xxxx, Xxxxxxxxxx, Xxx Xxxxxx on the day which is one (1)
business day after the Company receives notification from the staff of the U.S.
Securities and Exchange Commission (the "Commission") of the staff's willingness
to declare effective the registration statement to be filed by the Company as
provided in Section 5 of this Stock Purchase Agreement, or at such other place
or on such other date as may be mutually agreeable to the Company and the
Purchasers (the "Closing Date"). At the Closing, the Company will deliver to the
Purchaser certificates evidencing the Shares to be purchased by the Purchaser,
registered in its name, upon payment of the Purchase Price thereof in the manner
specified in Section 1.2. As of the date of Closing, the Purchaser shall be
entitled to vote all of the Shares, to receive dividends, if any, and to obtain
all of the rights otherwise granted to the Company's shareholders.
1.4 The certificate or certificates evidencing the Shares
shall be endorsed as follows:"The securities represented by this certificate
were originally purchased on _____ , 2000, and sold in reliance upon the
exemption from registration under the Securities Act of 1933 of the United
States of America, as amended (the "Act"), provided by Section 4(2) thereof and
Rule 506 thereunder and may not be sold or transferred in the United States in
the absence of an effective registration statement under the Act or an exemption
from registration thereunder."
2. Representations and Warranties by the Company. To induce the Purchaser to
enter into this Agreement and to purchase the Shares, the Company hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date, the following:
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2.1 Organization, Standing, Etc. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey and has the requisite corporate power and authority to own
or lease its properties and to carry on its business as it is now being
conducted. The Company has one subsidiary, DUSA Pharmaceuticals New York, Inc.
which is wholly-owned. The subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York and has
the requisite corporate power and authority to own or lease its properties and
to carry on its business as it is now being conducted. The Company and its
subsidiary are duly qualified to transact business and are in good standing in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on their business, prospects, financial condition, assets or
properties (a "Material Adverse Effect"). The Company has the requisite
corporate power and authority to issue the Shares and to perform its obligations
under this Stock Purchase Agreement. For purposes of this Stock Purchase
Agreement, where appropriate, references to the Company shall include its
subsidiary.
2.2 Valid Issuance. The Shares, when issued and delivered
against payment therefor pursuant to terms of this Stock Purchase Agreement,
will be duly authorized, validly issued and outstanding, fully paid and
nonassessable, and enforceable in accordance with their respective terms and the
terms of this Stock Purchase Agreement. The Shares will be free of any liens or
encumbrances other than those created by or imposed upon the Purchaser through
no action of the Company. Except for certain holders of outstanding options
listed on Schedule 2.2 of this Stock Purchase Agreement, no stockholder of the
Company has any right (which has not been waived or has not expired by reason of
lapse of time following notification of the Company's intent to file the Resale
Registration Statement) to request or require the Company to register the sale
of any shares owned by such stockholder in the Resale Registration Statement (as
defined in Section 5.3).
2.3 Corporate Acts and Proceedings. This Stock Purchase
Agreement and the sale of Shares have been duly authorized by all necessary
corporate action on behalf the Company. This Stock Purchase Agreement has been
duly executed and delivered by an authorized officer of the Company, is a valid
and binding agreement on the part of the Company and is enforceable against the
Company in accordance with its terms subject to laws of general application from
time to time in effect affecting creditors' rights and the exercise of judicial
discretion in accordance with general equitable principles and the
enforceability of the indemnification obligations set forth in Section 5.4
hereof. All corporate actions necessary to the authorization, creation, issuance
and delivery of the Shares have been taken by the Company. The Company has all
requisite legal power and authority to execute and deliver this Stock Purchase
Agreement and to carry out and perform its obligations hereunder.
2.4 Compliance with Applicable Laws and Other Instruments. The
Company is not in violation of or default of its Certificate of Incorporation or
Bylaws or, except as disclosed in the SEC Filings as defined in Section 2.6 of
any instrument, indenture or agreement to which it is a party or by which it is
bound, or to its knowledge of any provision of federal or state law, or any
judgment, order, writ, decree, statute, rule or regulation applicable to the
Company, the violation of which would have a Material Adverse Effect. Neither
the execution or delivery of, nor the performance of or compliance with this
Stock Purchase Agreement, the issuance of the Shares nor the consummation of the
transactions contemplated hereby will, with
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or without the giving of notice or passage of time, result in any material
breach of, or constitute a material default under, or result in the imposition
of any material lien or encumbrance upon any asset or property of the Company
pursuant to, any material agreement, contract, permit, license, indenture or
other instrument to which the Company is a party or by which it or any of its
properties, assets or rights is bound or affected or to its knowledge any
provision of federal or state law or any judgment, order, writ, decree, statute,
rule or regulation applicable to the Company the violation of which would have a
Material Adverse Effect, and will not violate the Company's Certificate of
Incorporation or Bylaws.
2.5 Securities Laws. Based in part upon the representations of
the Purchaser in Section 3 hereof, no consent, authorization, approval, permit
or order of or filing with any governmental or regulatory authority is required
under current laws and regulations in connection with the execution and delivery
of this Agreement or the offer, issuance, sale or delivery of the Shares, other
than (i) the filing of a Form D pursuant to Regulation D under the Securities
Act of 1933, as amended (the "Act"), (ii) the filing, if required, of any notice
with any state whose laws require such filing, (iii) the qualification thereof,
if required, under other applicable state laws, which qualification has been or
will be effected as a condition to the Closing and (iv) the listing thereof on
the NASDAQ Stock Market. Based in part upon the representations of the Purchaser
in Section 3, the offer, issuance, sale and delivery of the Shares will not
require compliance with the prospectus delivery or registration requirements in
the Act.
2.6 Capital Stock. The authorized and issued capital stock of
the Company is correctly set forth in the financial statements for the year
ended December 31, 1999. All of the outstanding shares of the Company were duly
authorized and validly issued and are fully paid and nonassessable, have been
issued in compliance with applicable securities laws, were not issued in
violation of or are not otherwise subject to any preemptive or other similar
right or rights to subscribe for or purchase securities and conform in all
material respects to the description thereof contained in the Form 10-K. Except
as described in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, (the "Form 10-K"), and any other reports filed prior to
Closing (collectively, the "SEC Filings"), in each case as filed with the
Securities and Exchange Commission (the "Commission"), or on Schedule 2.6
attached to this Stock Purchase Agreement, there are no outstanding
subscriptions, options, warrants, calls, contracts, demands, commitments,
convertible securities, proxy or stockholder agreements, or other agreements or
arrangements of any character or nature whatever, other than in connection with
the Offering, pursuant to which the Company is obligated to issue any securities
of any kind representing an ownership interest in the Company. Neither the offer
nor the issuance or sale of the Shares constitutes an event under any
anti-dilution provisions of any securities issued (or issuable pursuant to
outstanding rights, warrants or options) by the Company or any agreements with
respect to the issuance of securities by the Company, which will either increase
the number of securities issuable pursuant to such provisions or decrease the
consideration per share to be received by the Company pursuant to such
provisions. No holder of any securities of the Company is entitled to any
preemptive or similar rights to purchase any securities of the Company.
2.7 SEC Filings. The Company has furnished, or made available
through the XXXXX Internet web site of the Commission, to the Purchaser true and
complete copies of the SEC Filings. As of their respective filing dates, the SEC
Filings complied in all material
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respects with the applicable requirements of the Exchange Act of 1934, as
amended (the "Exchange Act"). The SEC Filings do not as of their respective
dates contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. Deloitte & Touche LLP has expressed their opinion with
respect to the audited consolidated financial statements to be incorporated by
reference into the Registration Statement and the Prospectus which forms a part
thereof from the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 and are independent accountants as required by the Act and the
rules and regulations thereunder. The consolidated financial statements
(including the notes and schedules thereto) have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis (except as otherwise disclosed in the notes thereto) and fairly
present the financial position of the Company as at the dates thereof and the
results of its operations and cash flows for the periods then ended subject, in
the case of unaudited interim financial statements, to normally recurring
year-end adjustments and any other adjustments described in such financial
statements.
2.8 Intellectual Property.
Except as otherwise specifically disclosed in the SEC Filings
to the best of its knowledge, the Company and its subsidiary: (i)own, or have
obtained licenses or rights to use, patents, trademarks (both registered and
unregistered), trade names, and trade secrets necessary to carry out the
Company's and its subsidiary's respective businesses as currently conducted with
respect to the treatment of actinic keratoses of the face and scalp with
Levulan7KerastickJ; provided however, that the Company does not provide any
warranty of non-infringement (collectively, the "Intellectual Property"); (ii)
have not received notice from any third party who has asserted any ownership
rights to any Intellectual Property; (iii) are not aware of sales of any
products that would constitute an infringement by third parties of any material
Intellectual Property; (iv) are aware of no pending or threatened action, suit,
proceeding or claim by a third party challenging the ownership rights in,
validity or scope of, the Intellectual Property; provided however that the
Company is aware of: (a) the opposition to Japanese Patent No. 273032, licensed
by the Company from PARTEQ, (b) while not a threat of litigation, the January
14, 2000 and February 8, 2000 letters from Xx. Xxxxx Xxxxx to the Company, (c)
the letters dated January 11, 2000 and January 18, 2000 from Xxxxxx Xxxxxxxx to
the Company alleging breach and termination of the License Agreement between the
Company and Photo Therapeutics Limited with respect to patents and know-how
regarding a prototype light device; and (v) are not aware of any pending or
threatened action, suit, proceeding or claim by a third party asserting that the
Company or its Subsidiary infringe or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary right of any third party as would
reasonably be expected to result in a Material Adverse Effect.
2.9 Litigation. Other than as described in the SEC Filings (as
defined in Section 2.6 ), there are no legal actions, suits, arbitrations or
other legal, administrative or governmental proceedings pending or, to the best
of the Company's knowledge, threatened against the Company or its properties,
assets or business, and neither the Company nor any of its officers is aware of
any facts which might result in or form the basis for any such action, suit or
other proceeding, in each case which, if adversely determined, would,
individually or in the aggregate, have a Material Adverse Effect or prevent or
adversely affect the transactions
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contemplated by this Agreement. The Company is not in default with respect to
any judgment, order or decree of any court or any governmental agency or
instrumentality which default would have a Material Adverse Effect.
2.10 Properties. The Company has good and marketable title to
all the properties and assets reflected as owned in the financial statements
included in the SEC Filings, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except (i) those, if any, reflected in such financial
statements, or (ii) those which are not material in amount and do not adversely
affect the use made and promised to be made of such property by the Company and
its subsidiary. The Company or the applicable subsidiary holds its leased
properties under valid and binding leases, with such exceptions as are not
materially significant in relation to the business of the Company. Except as
disclosed in the SEC Filings, the Company owns or leases all such properties as
are necessary to its operations as now conducted or as proposed to be conducted.
2.11 No Brokers or Finders. Except for claims of Chase
Securities Inc. and CIBC World Markets (the "Agents") in connection with this
transaction which shall not exceed an aggregate of 5% of the total purchase
price for the Shares, no person, firm or corporation has or will have, as a
result of any act or omission of the Company, any right, interest or valid claim
against the Purchaser for any commission, fee or other compensation as a finder
or broker in connection with the transactions contemplated by this Agreement.
The fees and commissions payable to the Agents shall be paid by the Company and
the Company shall indemnify and hold the Purchaser harmless for any claims made
by the Agents concerning the purchase of the Shares.
2.12 Insurance. Each of the Company and its subsidiary
maintains insurance of the types and in the amounts generally deemed adequate
for its business, including, but not limited to, insurance covering all real and
personal property owned or leased by the Company and its subsidiary against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect; however the
Company is seeking, but has not yet obtained product liability insurance.
2.13 Compliance with Environmental Laws. Except as disclosed
in the SEC Filings, the Company is not, to its knowledge, in violation of any
applicable statute, law or regulation relating to the environment or
occupational health and safety, and, to the best of the Company's knowledge, no
material expenditures are or will be required in order to comply with any such
existing statute, law or regulation, except to the extent such expenditure may
be required in the case of the establishment of a limited production line as a
second source for the Levulan(R) Kerastick(TM). To the best of the Company's
knowledge, the Company does not have any material liability to any governmental
authority or other third party arising under or as a result of any such past or
existing statute, law or regulation.
2.14 Compliance. The Company has not been advised, and has no
reason to believe, that either it or any of its subsidiary is not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business; except where failure to be so
in compliance would not have a Material Adverse Effect.
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2.15 Taxes. The Company and its subsidiary have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of any tax deficiency which has been or might be asserted or threatened against
the Company or its subsidiary which could materially and adversely affect the
business, operations or properties of the Company and its subsidiary.
2.16 Transfer Taxes. On the Closing Date, all stock transfer
or other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to the Purchaser
hereunder 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 complied with fully.
2.17 Changes. Except as set forth in the SEC Filings, since
December 31, 1999, the Company has not, to the extent material to the Company
and its subsidiary, taken as a whole, (i) incurred any debts, obligations or
liabilities, absolute, accrued or contingent, whether due or to become due,
other than in the ordinary course of business or which could materially and
adversely affect the Company's (and its subsidiary) future profitability, (ii)
mortgaged, pledged or subjected to lien, charge, security interest or other
encumbrance any of its assets, tangible or intangible, (iii) waived any debt
owed to the Company, (iv) satisfied or discharged any lien, claim or encumbrance
or paid any obligation other than in the ordinary course of business, (v)
declared or paid any dividend, or (vi) entered into any transaction other than
in the usual and ordinary course of business. Other than as may be set forth in
the SEC Filings, there has been no material adverse changes in the financial
condition or business, assets or properties of the Company since the date of the
financial statements contained in the SEC Filings other than normal recurring
operating losses.
2.18 Representations. The Company certifies that the
representations set forth herein concerning the Company are true and correct as
of the date hereof, shall be true and accurate as of the Closing Date and shall
survive thereafter.
3. Representations by Purchaser.
The Purchaser makes the following representations, declarations and
warranties to the Company, with the intent and understanding that the Company is
relying thereon, all of which shall survive the Closing:
3.1 The Purchaser acknowledges that the Shares have not been
registered under the Act or under the securities laws of any state, and have not
been qualified for distribution under any applicable Canadian securities laws;
that the Company has no obligation to effect such registration or qualification,
except as set forth in Section 5 hereof; and that the Shares issuable hereunder
are subject to substantial restrictions on transfer. The Purchaser is not a
resident of Canada.
3.2 The Shares are being purchased for the Purchaser's own
account for investment purposes and not with a view to or for sale in connection
with any distribution, except as permitted hereunder and in accordance with
applicable law. The Purchaser has such knowledge and experience in financial and
business matters that will enable the Purchaser to
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utilize the information made available to it in connection herewith to evaluate
the merits and risks of the prospective investment and to make an informed
investment decision.
3.3 The Purchaser understands that an investment in the Shares
involves significant risks and that it has taken full cognizance of and
understands the risk factors relating to the purchase of the Shares set forth in
the SEC Filings, including, but not limited to, certain risk factors as set
forth in the "Risk Factors" section of the Company's Form 10-K for the year
ended December 31, 1999 to be filed with the Commission.
3.4 The Purchaser is validly existing and has all requisite
power and authority to enter into this Agreement and perform its obligations
hereunder. The execution, delivery and performance by the Purchaser of this
Stock Purchase Agreement, and the purchase of the Shares have been duly
authorized and approved by all necessary corporate or other action by the
Purchaser. This Stock Purchase Agreement has been duly executed and delivered
and constitutes a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, subject to laws of general application from time to
time in effect affecting creditors' rights and the exercise of judicial
discretion in accordance with general equitable principles and the
enforceability of the indemnification obligations set forth in Section 5.4
hereof. The execution, delivery and performance of this Stock Purchase Agreement
and the purchase of the Shares will not conflict with, or result in a material
breach of any of the terms of, or constitute a material default under, any
articles of incorporation, agreement, trust, instrument, covenant or other
restriction to which the Purchaser is a party or by which it is bound.
3.5 The Purchaser's investment in the Company is reasonable in
relation to the Purchaser's net worth and financial needs and the Purchaser is
able to bear the economic risk of losing the entire investment in the Shares.
The Purchaser is an "accredited investor" within the meaning of Rule 501(a) of
Regulation D of the Act.
3.6 The Purchaser understands that no United States or state
agency, or Canadian or provincial regulatory authority, has approved or
disapproved the Shares, passed upon or endorsed the merits of this offering, or
made any finding or determination as to the fairness of the Shares for
investment.
3.7 The Purchaser is fully aware that the Shares purchased are
being sold in reliance upon exemptions from registration under the Act and state
securities laws, as well as applicable Canadian laws and regulations, based
upon, among other things, the Purchaser's representations, warranties,
declarations and agreements set forth in this Agreement. The Purchaser is fully
aware of the restrictions on resale, transferability and assignment of the
Shares, and that the Purchaser must bear the economic risk of their investment
in the Company for an indefinite period of time because the Shares have not been
registered under the Act and, therefore, cannot be offered or sold unless they
are subsequently registered under the Act or qualified for distribution under
the applicable Canadian securities legislation, or an exemption from
registration or prospectus requirements is available thereunder.
3.8 The Purchaser certifies that the representations set forth
herein concerning the Purchaser are true and correct as of the date hereof ,
shall be true and accurate as of the Closing Date, and shall survive the
Closing.
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3.9 The Purchaser acknowledges that material documents,
records and books pertaining to the Company have, on request, been made
available to the Purchaser or its counsel or other representatives, including
but not limited to, the Company's Annual Report on Form 10- K for the year ended
December 31, 1999.
3.10 The Purchaser acknowledges that, at a reasonable time
prior to the date hereof, it has had the opportunity to ask questions of, and
receive answers from the senior management of the Company concerning all
material aspects of the business of the Company and the terms and conditions of
the purchase of the Shares, and to obtain any additional information to the
extent that the Company possesses such information or can acquire it without
unreasonable effort or expense, which is necessary to verify the accuracy of the
information given to the Purchaser or otherwise to make an informed investment
decision.
3.11 The Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 1 above, relied solely upon
the SEC Filings and the documents included therein and the representations and
warranties of the Company contained herein and not on any other information
concerning the Company or the Offering. .
3.12 The Purchaser represents and warrants to and covenants
with the Company that the Purchaser has not engaged and will not engage in any
sales of the Shares, including a short sale covered by the Shares, (i) prior to
the effectiveness of the Resale Registration Statement (as defined in Section
5), except to the extent that any such short sale is fully covered by shares of
common stock of the Company other than the Shares, or (ii) unless such sale is
exempt from the registration requirements of applicable securities laws.
3.13 The Purchaser has not entered into any agreement to pay
commissions to any persons with respect to the purchase or sale of the Shares,
except commissions for which the Purchaser will be responsible.
3.14 The Purchaser acknowledges that the Company will pay to
Chase Securities Inc. and CIBC World Markets with respect to the sale of the
Shares by the Company to the Purchaser a commission of 5 % of the aggregate
Purchase Price, payable in cash at the time of Closing.
4. Covenants of the Purchaser.
4.1 Purchaser covenants that the Purchaser shall resell the
Shares only pursuant to effective registration under the Act in accordance with
the rules and regulations which may pertain to the Purchaser upon such resale
under the Act or under any other applicable United States or Canadian securities
regulation, or pursuant to an available exemption from registration or
prospectus requirements there, including applicable prospectus delivery
requirements, under and in accordance with the requirements of Securities Act
(Ontario) to the extent that such act applies to such resale.
4.2 The Purchaser acknowledges and agrees that the Shares are
not transferable on the books of the Company unless the certificate submitted to
the transfer agent
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evidencing the Shares is accompanied by a separate officer's certificate to the
effect that (A) the Shares have been sold in accordance with the Registration
Statement, the Securities Act and the Rules and Regulations and any applicable
state securities or blue sky laws and (B) the requirement of delivering a
current prospectus has been satisfied. The Purchaser acknowledges that there may
occasionally be times when the Company must suspend the use of the prospectus
forming a part of the Registration Statement until such time as an amendment or
supplement to the Registration Statement or the Prospectus has been filed by the
Company and any such amendment to the Registration Statement is declared
effective by the Commission, or until such time as the Company has filed an
appropriate report with the Commission pursuant to the Exchange Act. The
Purchaser hereby covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said prospectus. The Purchaser
further covenants to notify the Company promptly of the sale of all of its
Shares.
5. Certain Registration and Related Rights. In accepting this
subscription, the Company agrees to the following provisions regarding certain
registration and related rights:
5.1 Registration of the Shares. The Company agrees to use its
best efforts to file with the Commission, and other appropriate United States
securities regulatory agencies, pursuant to the Act, a Registration Statement on
Form S-3, or its equivalent, in order to register the Shares purchased by the
Purchaser according to the procedure stated in Section 5.3 below.
5.2 Expenses. The Company will pay all Registration Expenses
in connection with the registration of the Shares pursuant to Section 5.1. The
term "Registration Expenses" shall mean all expenses incurred by the Company in
complying with Section 5.1, including, without limitation, all registration and
filing fees, printing expenses, transfer agent and registrar fees, fees and
disbursements of counsel for the Company, "blue sky" fees and expenses,
accountants' expenses including without limitation any special audits or
"comfort" letters incident to or required by any such registration, fees for
listing the shares on securities exchanges and/or the Nasdaq Stock Market, NASD
fees, costs of any insurance which might be obtained, fees and expenses of one
counsel for the Purchaser, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions.
5.3 Registration Procedures.
(a) The Company will promptly:
(i) not later than 30 business days after the
execution of this Stock Purchase Agreement file a registration statement or
amend an existing effective registration statement (in either case, the "Resale
Registration Statement") with the Commission to register under the Act the
resale by the Purchaser of the Shares;
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(ii) use its best efforts to cause the Resale
Registration Statement to become effective under the Act as expeditiously as
possible after the Resale Registration Statement is filed;
(iii) use its best efforts to cause such
Registration Statement to remain effective until such time as the Purchaser
becomes eligible to resell the Shares pursuant to Rule 144(k) under the Act or
until all of the Shares have been sold, whichever occurs first;
(iv) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with respec
to the disposition of the Shares until the Shares have been disposed of in
accordance with the intended methods of disposition by the Purchaser set forth
in such registration statement and will furnish, upon request, to the Purchaser
prior to the filing thereof a copy of any amendment or supplement to such
registration statement or prospectus;
(v) furnish to the Purchaser such number of
copies of the prospectus included in such registration statement (including eac
preliminary prospectus and all amendments or supplements), in conformity with
the requirements of the Act and such other documents as the Purchaser may
reasonably request to facilitate the public offering of the Shares;
(vi) use its best efforts to register or qualify
the Shares covered by such registration statement under such other securities
or "blue sky" laws of such jurisdiction as the Purchaser shall reasonably
request, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this Section 5.3 be obligated
to be so qualified;
(vii) immediately notify the Purchaser at any
time when a prospectus relating thereto is required to be delivered under the
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and to,
as expeditiously as reasonably practicable, correct such untrue statement or
omission;
(viii) cause the Shares to be listed on the Nasdaq
National Market or any securities exchange or quoted on each quotation service
on which the Common Stock of the Company is then listed or quoted.
(b) The Purchaser shall furnish the Company with such
information regarding the Purchaser and the distribution of the Shares as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith. The Company shall
not be obligated to register the Shares if the Purchaser does not comply with
this paragraph.
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(c) At any time the Company may refuse to permit the
Purchaser to resell any Shares pursuant to the Resale Registration Statement;
provided, however, that in order to exercise this right, the Company must
deliver a certificate in writing to the Purchaser to the effect that withdrawal
of such Resale Registration Statement is necessary because a sale pursuant to
the Resale Registration Statement in its then-current form could constitute a
violation of the federal securities laws. In such an event, the Company shall
use its best efforts to amend the Resale Registration Statement if necessary and
take all other actions necessary to allow such sale under the federal securities
laws as expeditiously as reasonably practicable, and shall notify the Purchaser
promptly after it has determined that such sale has become permissible under the
federal securities laws. The Purchaser hereby covenants and agrees that it will
not sell any Shares pursuant to the Resale Registration Statement during the
periods the Resale Registration Statement is withdrawn as set forth in this
Section 5.3(c).
5.4 Indemnification.
(a) The Purchaser understands the meaning and legal
consequences of the representations and warranties made by the Purchaser in this
Stock Purchase Agreement, and agrees to indemnify and hold harmless the Company
and each of the Company's directors, each of its officers who sign the Resale
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act from and against any and all loss, damage, liability or
expenses (including, without limitation, attorneys' fees), as and when incurred
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Purchaser, which may not be unreasonably withheld),
due to or arising out of (in such case in whole or in part) any breach of any
representation or warranty made by the Purchaser set forth herein or in any
other agreement or other document furnished by the Purchaser to any of the
foregoing in connection with the sale of the Shares, any failure by the
Purchaser to fulfill any of its covenants or agreements set forth herein, or
arising out of the resale or distribution by the Purchaser of the Shares or any
portion thereof in violation of the Act or any applicable foreign or state
securities or "blue sky" law.
(b) The Company understands the meaning and legal
consequences of the representations and warranties made by it in this Stock
Purchase Agreement, and agrees to indemnify and hold harmless the Purchaser and
each of the Purchaser's directors, officers, and each person, if any, who
controls the Purchaser within the meaning of the Act from and against any and
all loss, damage, liability or expense (including, without imitation, attorneys'
fees), as and when incurred (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company, which may not be
unreasonably withheld), due to or arising out of (in each case in whole or in
part) any breach of any representation or warranty made by the Company set forth
herein, or any failure by the Company to fulfill any of its covenants or
agreements set forth herein.
(c) To the extent permitted by law, the Company will
indemnify and hold harmless each holder of Shares included in the Resale
Registration Statement (a "Holder"), the directors, if any, of such Holder, the
officers, if any, of such Holder, and each person, if any, who controls such
Holder within the meaning of the Act or the Exchange Act, against any losses,
claims, damages, expenses or liabilities to which any of them may become
subject, under the
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Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof, including in settlement of any litigation, if
such settlement is effected with the written consent of the Company, which may
not be unreasonably withheld) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Resale Registration Statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or (iii) any violation or
alleged violation by the Company of the Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Act, the Exchange
Act or any state securities law; and the Company will reimburse the Holders and
each such controlling person, promptly as such expenses are incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding.
(d) To the extent permitted by law, each Holder, severally
and not jointly, will indemnify and hold harmless, to the same extent and in the
same manner set forth in Section 5.4(c), the Company, each of its directors and
officers who have signed the Resale Registration Statement, and each person, if
any, who controls the Company within the meaning of the Act or the Exchange Act,
against any losses, claims, damages or liabilities to which any of them may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened in respect thereof, including in settlement of any
litigation, if such settlement is effected with the written consent of the
Purchaser, which may not be unreasonably withheld) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with the
Resale Registration Statement; and such Holder will reimburse such persons for
any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability or
action.
(e) With respect to the indemnification set forth in
Section 5.4, to the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under said Sections 5.4(c) or (d) to the extent permitted by law; provided that
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in said
Sections 5.4(c) or (d), and (ii) no party guilty of fraudulent misrepresentation
(within the meaning of Section 11 of the Act) shall be entitled to contribution
from any party who was not guilty of such fraudulent misrepresentation The
Purchaser's and Xxxxxx's aggregate indemnification and contribution obligations
under this Section 5 shall be limited in amount to the net amount of proceeds
received by the Purchaser or such Holder from the sale of Shares under the
Resale Registration Statement.
5.5 Information Available. So long as the Resale
Registration Statement is effective covering the resale of the Shares owned by
the Purchaser, the Company will furnish to the Purchaser:
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(a) as soon as practicable after available (but in the
case of the Company's Annual Report to Stockholders, within 120 days after the
end of each fiscal year of the Company), one copy of (I) its Annual Report to
Stockholders (which Annual Report shall contain financial statements audited in
accordance with generally accepted accounting principles by a national firm of
certified public accountants), (II) if not included in substance in the Annual
Report to Stockholders, its SEC Filings, and (III) a full copy of the particular
Resale Registration Statement covering the Shares (the foregoing, in each case,
excluding exhibits);
(b) upon the reasonable request of the Purchaser, all
exhibits excluded by the parenthetical to subparagraph (a)(III) of this Section
5.5;
(c) upon the reasonable request of the Purchaser, a
reasonable number of copies of the prospectuses to supply to any other party
requiring such prospectuses; and
(d) upon the reasonable request of the Purchaser, the
Company will meet with the Purchaser or a representative thereof at the
Company's headquarters to discuss information relevant for disclosure in the
Resale Registration Statement, subject to appropriate confidentiality
limitations as the Company may reasonable require.
6. Conditions Precedent to Obligations of the Company.
The obligations of the Company to consummate the transactions
contemplated by this Agreement are subject, in the discretion of the Company, to
the satisfaction at or prior to the Closing of each of the following conditions:
6.1 Accuracy of Representations and Warranties. All
representations and warranties of the Purchaser contained herein shall be true
in all respects on and as of the date of Closing, with the same force and effect
as though made on and as of the date of Closing.
6.2 Performance of Agreements. The Purchaser shall have
performed all obligations and agreements, and complied with all covenants and
conditions contained in this Agreement to be performed or complied with by it
prior to or at the Closing.
6.3 Officer's Certificate. The Company shall have received a
certificate of the Purchaser dated the date of Closing, signed by an authorized
officer the Purchaser, to the effect that the conditions specified in Sections
6.1 and 6.2 above have been fulfilled.
6.4 Purchase Price. The Company shall have received the
Purchase Price as set forth in Section 1.2.
7. Conditions Precedent to the Obligations of the Purchaser.
The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement are subject, in the discretion of the Purchaser,
to the satisfaction at or prior to the Closing of each of the following
conditions:
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7.1 Accuracy of Representations and Warranties. All
representations and warranties of the Company contained herein shall be true in
all material respects on and as of the date of Closing, with the same force and
effect as though made on and as of the date of Closing.
7.2 Performance of Agreements. The Company shall have
performed all obligations and agreements, and complied with all covenants and
conditions, contained in this Agreement to be performed or complied with by it
prior to or at the Closing.
7.3 Officer's Certificate. The Purchaser shall have
received a certificate of the Company, dated as of the date of Closing, signed
by an officer of the Company, to the effect that the conditions specified in
Sections 7.1 and 7.2 above, have been fulfilled.
7.4 Opinion of Counsel for the Company. The Purchaser shall
have received an opinion of counsel for the Company, dated as of the date of
Closing, in form and substance reasonably satisfactory to the Purchaser, to the
effect that:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey
and has all requisite corporate power and authority to carry on its business as
now being conducted, to enter into this Agreement, and to perform its
obligations hereunder.
(b) The execution, delivery and performance by the
Company of thisAgreement and the consummation by the Company of the transactions
contemplated hereby have been duly and effectively authorized by all necessary
corporate action on the part of the Company and this Agreement has been duly
executed and delivered by the Company and, assuming due and effective
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Company, enforceable against it in
accordance with the terms of such agreement, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and except that
the availability of equitable remedies, including specific performance, and the
enforceability of the indemnification obligations under Section 5.4 are subject
to the discretion of the court before which any proceeding therefor may be
brought.
(c) The Shares to be issued hereby have been
duly authorized by all necessary corporate action of the Company and, when
certificates therefor are countersigned by the Company's transfer agent and
issued and delivered to and paid for by the Purchaser pursuant to this
Agreement, will be validly issued, fully paid and non-assessable.
(d) The offer and sale of the Shares by the
Company pursuant to the Stock Purchase Agreement are exempt from the
registration requirements of Section 5 of the Act. (e) No stop order shall have
been received on or prior to the date of Closing from the Commission or any or
state governmental authority on the part of the Company with respect to the
Shares to be delivered to the Purchaser.
7.5 Effectiveness of Resale Registration Statement.
The Commission shall have declared the effectiveness of the Resale Registration
Statement prior to the Closing.
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If the Resale Registration Statement has not been declared effective by the
Commission within 105 days of the filing thereof, then the Purchaser shall have
the right, but not the obligation, to terminate this Stock Purchase Agreement
without consummating the purchase of the Shares.
7.6 Certificates. The Purchaser shall have received one or
more certificates representing the Shares.
8. The Purchaser's Obligations at Closing.
At the Closing, and concurrently with performance by the Company of its
obligations under Section 9, the Purchaser shall deliver or cause to be
delivered to the Company the following:
(a) The Officer's certificate described in Section 6.3.
(b) The certified check or funds to be delivered pursuant
to Section 1.2.
(c) Such other certificates, documents and agreements which
may be called for under this Stock Purchase Agreement.
9. The Company's Obligations at Closing.
At the Closing, and concurrently with performance by the Purchaser of
its obligations under Section 8, the Company shall deliver or cause to be
delivered the following:
(a) The Officer's certificate described in Section 7.3.
(b) Share certificates, which shall be registered in the
Purchaser's respective names in the following amounts:
(c) Such other certificates, documents and agreements which
may be called for under this Agreement (including the
Commission's declaration of the effectiveness of the
Resale Registration Statement).
10. Applicable Law.
This Agreement shall be construed in accordance with and governed by
the laws of the State of New Jersey.
11. Entire Agreement.
This Agreement, when accepted by the parties, will constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be amended other than by a
writing executed by all the parties hereto.
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12. Assignability.
The Purchaser acknowledges that it may not assign any of its rights to
or interest in or under this Agreement without the prior written consent of the
Company, and any attempted assignment without such consent shall be void and
without effect.
13. Binding Agreement; Succession.
This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns.
14. Waiver or Modification.
Any of the terms or conditions of this Agreement may be waived or
modified at any time and from time to time by the party entitled to the benefit
of such term or condition; however, no party shall be deemed to have waived any
right hereunder unless such waiver shall be in writing and signed by the party
or the party's representative. No delay or omission on the part of any party in
exercising any right shall operate as a waiver or modification of such right or
any other right. A waiver or modification by any party of a breach of a
provision of this Agreement shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict subsequent compliance with that
provision or any other provision.
15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts together shall constitute one
and the same instrument.
16. Notices.
Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid, to the address of each party set forth herein. Any such notice shall be
deemed given when delivered personally, telegraphed, telexed, sent by facsimile
transmission or, if mailed, three days after the date of deposit in the United
States mails to:
the Company: Dr. X. Xxxxxxxx Xxxxxxx
DUSA Pharmaceuticals, Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Lane and Xxxxxxx
000 Xxxxx 00 Xxxx
XX Xxx 0000
Xxxxxxxxxx, XX 00000
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the Purchaser: Xx. Xxxx Xxxxxxx
Invesco Funds Group
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
with a copy to: Xxxx Xxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx
The Xxxxx Center
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
17. Interpretation.
17.1 When the context in which words are used in this
Agreement indicates that such is the intent, singular words shall include the
plural, and vice versa, and masculine words shall include the feminine and
neuter genders, and vice versa.
17.2 Captions are inserted for convenience only, are not a
part of this Agreement, and shall not be used in the interpretation of this
Agreement.
17.3 In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not effect any other provision hereof, but this Agreement shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein.
18. Further Documents. The undersigned agrees that it will execute such
other documents as may be necessary or desirable in connection with the
transactions contemplated hereby.
19. Confidential Disclosure Agreement. Notwithstanding the provisions
of Section 6 of the Confidential Disclosure Agreement dated February 14, 2000,
between the Company and Purchaser (the "Confidential Disclosure Agreement"), the
parties hereto hereby agree that Purchaser (a) has not violated the provisions
of Section 6 of the Confidential Disclosure Agreement by entering into or
performing its obligations under this Agreement or purchasing the Shares and (b)
will not violate the provisions of Section 6 of the Confidential Disclosure
Agreement by selling the Shares at any time and in any manner permitted in this
Agreement.
20. Legal Fees. The Company shall pay its own expenses, including legal
fees and expenses, incurred with respect to this Stock Purchase Agreement and
the transactions contemplated hereby. Unless this Stock Purchase Agreement is
terminated by the Purchaser other than for a breach by the Company or a failure
by the Company to meet all of the conditions to Closing, whether or not the
Closing is effected, the Company will pay an amount not to exceed $20,000 for
the Purchaser's expenses for legal fees for counsel to the Purchaser and out of
pocket due diligence expenses.
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IN WITNESS WHEREOF, the Purchaser parties have hereby executed this
Agreement as of the date set forth above.
Invesco Global Health Sciences Fund DUSA PHARMACEUTICALS, INC.
By: By: /s/ X. Xxxxxxxx Xxxxxxx
--------------------- --------------------------
X. Xxxxxxxx Xxxxxxx, MD, FRCPC
President and CEO
20
SCHEDULE 2.2
Parteq Research and Development Innovations - 85,323 Shares underlying options
Mid-Ocean Investments Ltd. - 30,000 Shares underlying options
Xxxxxxx X. Xxxxxxx, Esq. - 40,000 Shares underlying options
Underwriter's Options and - 39,684 Shares underlying options
Placement Agent Warrants
(currently subject to a Registration Statement)
21
INVESCO HEALTH SCIENCES FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
INVESCO GLOBAL HEALTH SCIENCES FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
INVESCO VIF-HEALTH SCIENCES FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
AIM FUNDS MANAGEMENT INC., AS MANAGER, ON BEHALF OF
AIM GLOBAL HEALTH SCIENCES FUND
/s/Xxxxx X. Xxx
----------------------------
Name
Xxxxx X. Xxx
----------------------------
Printed Name
Secretary
----------------------------
Title
22
AIM FUNDS MANAGEMENT INC., AS MANAGER, ON BEHALF OF
AIM GLOBAL HEALTH CARE CLASS
/s/Xxxxx X. Xxx
----------------------------
Name
Xxxxx X. Xxx
----------------------------
Printed Name
Secretary
----------------------------
Title
INVESCO SMALL COMPANY GROWTH FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
INVESCO VIF-SMALL COMPANY GROWTH FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
IRT SMALL CAP GROWTH FUND
/s/Xxxxx Xxxxx
----------------------------
Name
Xxxxx Xxxxx
----------------------------
Printed Name
Corporate Secretary
----------------------------
Title
23
MAXIM INVESCO SMALL-CAP GROWTH FUND
/s/Xxxxx XxXxxx
----------------------------
Name
Xxxxx XxXxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
INVESCO ENDEAVOR FUND
/s/Xxxxxx X. Xxxxxx
----------------------------
Name
Xxxxxx X. Xxxxxx
----------------------------
Printed Name
Treasurer
----------------------------
Title
24
SCHEDULE 2.6
Options Proposed by Management of the Company but not yet Granted:
X. Xxxxxxxx Xxxxxxx, President/CEO 60,000 plus 125,000(bonus)
Xxx Xxxxxxx,Exec. VP/COO 30,000
Xxxxxx Xxxxxx, Senior VP/CSO 25,000
Xxxxx Xxxxxxx,VP, Technology 15,000
Xxxx Xxxxxx, VP,Operations 10,000
Xxxxxxx X. Xxxxxxx,Secretary 2,500
Xxxxxxx Xxxxxxxx 2,500
Xxxx Xxxxxxxx 2,000
Xxxxx Xxxxx 1,000
Xxxxxx Xxxx 1,500
Xxxxxxxx Xxxxx 1,000
Xxxxx Xxxxxx 2,500
Xxxxx Xxxxxxxx 1,500
Xxx Xxxxxxx 2,500
Xxx Xxxxxx 10,000
Xxxxxxxx Xxxxxx 5,000
Non-Executive Directors 10,000 x 4 = 40,000
25
SCHEDULE A
Invesco Global Health Sciences Fund 308,000
Invesco Health Sciences Fund 682,500
Invseco VIF-Health Sciences Fund 19,500
AIM Global Health Sciences Fund 195,000
AIM GT Global Health Care Class 95,000
Invesco Small Company Growth Fund 81,430
Invesco VIF-Small Company Growth Fund 500
IRT Small Cap Growth Fund 1,850
Maxim Invesco Small-Cap Growth Fund 16,220
Invesco Endeavor Fund 100,000
