Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of
February 12, 2004, among Keryx Biopharmaceuticals, Inc., a Delaware corporation
(the "Company"), and the purchasers identified on the signature pages hereto
(each a "Purchaser" and collectively the "Purchasers"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act (as defined below),
and Rule 506 promulgated thereunder, the Company desires to issue and sell to
the Purchasers, and the Purchasers, severally and not jointly, desire to
purchase from the Company (the "Offering") in the aggregate, up to 3,200,000
shares of Common Stock (as defined below) (the "Maximum Offering Amount").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agrees
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms have the
meanings indicated in this Section 1.1:
"Affiliate" means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is
under common control with a Person as such terms are used in and
construed under Rule 144. With respect to a Purchaser, any investment
fund or managed account that is managed on a discretionary basis by the
same investment manager as such Purchaser will be deemed to be an
Affiliate of such Purchaser.
"Business Day" means any day except Saturday, Sunday and any
day which shall be a federal legal holiday or a day on which banking
institutions in the State of New York are authorized or required by law
or other governmental action to close.
"Closing" means the closing of the purchase and sale of the
Common Stock pursuant to Section 2.1.
"Closing Date" means February 17, 2004.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, $0.001
par value per share, and any securities into which such common stock
may hereafter be reclassified.
"Company Counsel" means Xxxxxx & Bird LLP.
"Effective Date" means the date that the Registration
Statement is first declared effective by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall mean February 13, 2004, or such other
date as may be selected by the Company in its sole discretion without
notice to investors within 30 days thereafter.
"Liens" means a lien, charge, security interest, encumbrance,
right of first refusal or other restriction.
"Material Adverse Effect" shall have the meaning ascribed to
such term in Section 3.1(a).
"Per Share Purchase Price" equals $10.00.
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"Person" means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind.
"Registration Statement" means a registration statement
meeting the requirements set forth in the Registration Rights Agreement
and covering the resale by the Purchasers of the Shares.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company
and each Purchaser, in the form of Exhibit A hereto.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"Securities" means the Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock issued or issuable
to each Purchaser pursuant to this Agreement.
"Subscription Amount" means, as to each Purchaser and the
Closing, the amounts set forth below such Purchaser's signature block
on the signature page hereto, in United States dollars and in
immediately available funds.
"Trading Day" means (i) a day on which the Common Stock is
traded on a Trading Market, or (ii) if the Common Stock is not listed
on a Trading Market, a day on which the Common Stock is traded on the
over-the-counter market, as reported by the OTC Bulletin Board, or
(iii) if the Common Stock is not quoted on the OTC Bulletin Board, a
day on which the Common Stock is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or any
similar organization or agency succeeding to its functions of reporting
prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
"Trading Market" means the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in
question: the American Stock Exchange, the New York Stock Exchange, the
Nasdaq National Market or the Nasdaq SmallCap Market.
"Transaction Documents" means this Agreement, the Registration
Rights Agreement and any other documents or agreements executed in
connection with the transactions contemplated hereunder.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. Each Purchaser shall purchase from the Company, and the
Company shall issue and sell to each Purchaser, a number of Shares equal to such
Purchaser's Subscription Amount divided by the Per Share Purchase Price. Upon
satisfaction of the conditions set forth in Section 2.2, the Closing shall occur
at the offices of the Company, or such other location as the parties shall
mutually agree. The Company may continue the Offering, in one or more Closings,
until the earlier of the sale of the Maximum Offering Amount or until the
Expiration Date. Purchasers will be required to deliver executed, binding
Securities Purchase Agreements by the Expiration Date, the Closing of which will
only be subject to the satisfaction of the Closing Conditions in Section 2.2.
2.2 Closing Conditions.
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(a) As a condition to the Purchasers' obligation to close, at
the Closing (unless otherwise specified below) the Company shall have
satisfied each of the conditions set forth below or shall deliver or
cause to be delivered to each Purchaser the items set forth below, as
appropriate:
(i) this Agreement duly executed by the Company;
(ii) a copy of the resolutions of the Board of
Directors of the Company and a resolution of the shareholders,
if required, authorizing and approving the Company's
execution, delivery and performance of the Transaction
Documents, all matters in connection with the Financing
Documents, and the transactions contemplated thereby;
(iii) within five (5) Business Days of the Closing
Date, a certificate evidencing a number of Shares equal to
such Purchaser's Subscription Amount divided by the Per Share
Purchase Price, registered in the name of such Purchaser or
its nominee;
(iv) the Registration Rights Agreement duly executed
by the Company;
(v) a legal opinion of Company Counsel, in a form
reasonably satisfactory to Purchasers;
(vi) the representations and warranties made by the
Company herein shall be true and correct in all material
respects on the dates made and on the date of Closing;
(vii) all covenants, agreements and conditions
contained in this Agreement to be performed by the Company on
or prior to the Closing shall have been performed or complied
with in all material respects; and
(viii) no statute, rule, regulation, order, decree,
ruling or injunction shall have been enacted, entered,
promulgated, endorsed or threatened or is pending by or before
any governmental authority of competent jurisdiction which in
any material respect restricts, prohibits or threatens to
restrict or prohibit the consummation of any of the
transactions contemplated by the Transaction Documents.
(b) As a condition to the Company's obligation to close, at
the Closing, each Purchaser shall have satisfied each of the conditions
set forth below or shall deliver or cause to be delivered to the
Company the items set forth below, as appropriate:
(i) this Agreement duly executed by such Purchaser;
(ii) such Purchaser's Subscription Amount as to such
Closing by wire transfer to the account of the Company as
provided to the Purchasers in writing prior to the Closing
Date;
(iii) the Registration Rights Agreement duly executed
by such Purchaser;
(iv) the representations and warranties made by the
Purchasers herein shall be true and correct in all material
respects on the dates made and on the date of Closing;
(v) each Purchaser shall have performed, satisfied
and complied in all material respects with all covenants,
agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by such
Purchaser at or before the Closing; and
(vi) no statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated, endorsed or threatened or is pending by or before
any governmental authority of competent jurisdiction which
prohibits or threatens to prohibit the consummation of any of
the transactions contemplated by the Transaction Documents.
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(c) As a condition of each of the Purchasers' and the
Company's obligation to close, there shall have been no Material
Adverse Effect with respect to the Company since the date hereof.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth
in the Company's public filings under the Exchange Act, the Company, including
its subsidiaries for the purposes of this Article 3, hereby makes the following
representations and warranties as of the date hereof and as of the Closing Date
to each Purchaser:
(a) Organization and Qualification. The Company is an entity
duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization (as applicable), with the requisite corporate power and
authority to own and use its properties and assets and to carry on its
business as currently conducted. The Company is not in violation of any
of the provisions of its certificate of incorporation, bylaws or other
organizational or charter documents. The Company is duly qualified to
conduct business and is in good standing as a foreign corporation or
other entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the
case may be, would not have or reasonably be expected to result in (i)
a material adverse effect on the legality, validity or enforceability
of any Transaction Document, (ii) a material adverse effect on the
results of operations, assets, business or financial condition of the
Company, or (iii) a material adverse effect on the Company's ability to
perform in any material respect on a timely basis its obligations under
any Transaction Document (any of (i), (ii) or (iii), a "Material
Adverse Effect").
(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of the Company and
no further action is required by the Company in connection therewith.
Each Transaction Document has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies, and (iii) with respect
to the indemnification provisions set forth in the Registration Rights
Agreement, as limited by public policy.
(c) No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated thereby do not and will not
(i) conflict with or violate any provision of the Company's certificate
of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a
Company debt or otherwise) or other understanding to which the Company
is a party or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company is bound or affected; except in the
case of each of clauses (ii) and (iii), such as would not have or
reasonably be expected to result in a Material Adverse Effect.
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(d) Filings, Consents and Approvals. The Company is not
required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by
the Company of the Transaction Documents, other than (i) the filing
with the Commission of the Registration Statement, and one or more
Forms D with respect to the Shares as may be required under Regulation
D of the Securities Act, the application(s) to each Trading Market for
the listing of the Shares for trading thereon in the time and manner
required thereby, and applicable Blue Sky filings and (ii) such as have
already been obtained or such exemptive filings as are required to be
made under applicable state and federal securities laws.
(e) Capitalization. All of the outstanding shares of Common
Stock are, and all of the Shares, when issued, will be, duly
authorized, validly issued, fully paid and nonassessable, and free and
clear of all liens created by the Company, and all such shares were,
and the Shares, will be, issued in material compliance with all
applicable federal and state securities laws, including available
exemptions therefrom, and none of such issuances were, and the issuance
of the Shares will not be, made in violation of any pre-emptive or
other rights. The Company has reserved from its duly authorized capital
stock the maximum number of shares of Common Stock issuable pursuant to
this Agreement. The issuance of the Shares will not trigger any
anti-dilution rights of any existing securities of the Company.
(f) Reports and Financial Statements. The Company has made
available to the Purchasers, prior to the execution of this Agreement,
a copy of the Company's Annual Report on Form 10-K for the year ended
December 31, 2002, the Company's Quarterly Reports on Form 10-Q that
have been filed for all quarters ended since December 31, 2002, the
definitive proxy statement for the Company's 2003 annual meeting of
stockholders, and will make available any Current Reports on Form 8-K
filed since December 31, 2002 (as such documents have since the time of
their filing been amended or supplemented, and together with all
reports, documents and information filed on or after the date first
written above through the date of Closing with the SEC, including all
information incorporated therein by reference, collectively, the "SEC
Reports"). Since November 12, 2003, there has not been any material
adverse change in the business, financial condition, operations,
results of operations, assets, employee relations, customer or supplier
relations of the Company. The SEC Reports (a) complied and will comply
as to form in all material respects with the requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (b) did not, at the time of their filing, 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 therein, in light of the circumstances under which they were
made, not misleading.
(g) Conformity of Descriptions. The Shares conform in all
material respects to the descriptions of the Company's Common Stock
contained in the Company's SEC Reports and other filings with the SEC.
(h) Statements True and Correct. No representation, warranty,
statement, certificate, instrument, or other writing furnished or to be
furnished by the Company to Purchaser or its representatives pursuant
to this Agreement or any other document, agreement, or instrument
referred to herein, including the SEC reports, contains or will contain
any untrue statement of material fact or will omit to state a material
fact necessary to make the statements therein not misleading.
(i) Certain Fees. Any brokerage, finder's fees or commissions
that are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank
or other Person with respect to the transactions contemplated by this
Agreement will be paid solely by the Company.
(j) Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer
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and sale of the Securities by the Company to the Purchasers as
contemplated hereby. The issuance and sale of the Securities hereunder
does not contravene the rules and regulations of the Securities Act or
the Trading Market.
(k) Investment Company. The Company is not, and is not an
Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(l) Form S-3 Eligibility. The Company is eligible to register
the resale of its Common Stock by the Purchasers under Form S-3 or
other comparable form promulgated under the Securities Act.
(m) Application of Takeover Protections. Assuming the
Purchasers beneficially own any shares of Common Stock prior to the
date hereof, the Company and its Board of Directors have taken all
necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover
provision under the Company's Certificate of Incorporation (or similar
charter documents) or the laws of its state of incorporation that is or
could become applicable to the Purchasers as a result of the Purchasers
and the Company fulfilling their obligations or exercising their rights
under the Transaction Documents, including without limitation the
Company's issuance of the Securities and the Purchasers' ownership of
the Securities.
(n) No Integrated Offering. Neither the Company, nor any of
its Affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with prior
offerings by the Company in a manner that would require the
registration under the Securities Act of the sale of the Securities to
the Purchasers or that would be integrated with the offer or sale of
the Securities for purposes of the rules and regulations of any Trading
Market.
(o) Listing and Maintenance Requirements. The Company has not,
in the 12 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. The Company
is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and
maintenance requirements.
(p) Xxxxxxxx-Xxxxx; Internal Accounting Controls. The Company
is in material compliance with all provisions of the Xxxxxxxx-Xxxxx Act
of 2002 which are applicable to it as of the Closing Date. The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosures controls and procedures to ensure that
material information relating to the Company, including its
subsidiaries, is made known to the certifying officers during the
period in which the Company's most recently filed period report under
the Exchange Act, as the case may be, is being prepared. The Company's
certifying officers have evaluated the effectiveness of the Company's
controls and procedures as of a date within 90 days prior to the filing
date of the most recently filed period report under the Exchange Act
(such date, the "Evaluation Date"). The Company presented in its most
recently filed period report under the Exchange Act the conclusions of
the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no significant changes
in the Company's internal controls (as
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such term is defined in Item 307(b) of Regulation S-K under the
Exchange Act) or, the Company's knowledge, in other factors that could
significantly affect the Company's internal controls.
(q) Intellectual Property. To the knowledge of the Company,
the Company owns or possesses sufficient rights to use all material
patents, patent rights, trademarks, copyrights, licenses, inventions,
trade secrets, trade names and know-how (collectively, "Intellectual
Property") as are owned or used by it or that are necessary for the
conduct of its business as now conducted except where the failure to
currently own or possess could not reasonably be expected to have a
Material Adverse Effect. The Company has not received any notice of,
nor has it any knowledge of, any infringement of or conflict with
asserted rights of the Company by others with respect to any
Intellectual Property, except as could not reasonably be expected to
have a Material Adverse Effect. To the knowledge of the Company, no
product or process presently used or proposed to be manufactured,
marketed, offered, sold or used by the Company will violate any license
or infringe on any intellectual property rights of any other Person,
except as could not reasonable be expected to have a Material Adverse
Effect.
(r) Litigation. There is no litigation or governmental
proceeding or investigation pending or, to the knowledge of the
Company, threatened against the Company or against any officer or key
employee which may have a Material Adverse Effect or which may call
into question the validity, or materially hinder the enforceability or
performance, of the Transaction Documents.
(s) Insurance. The Company carries insurance covering its
properties and businesses customary for the type and scope of its
properties and business. All such policies are in full force and
effect, and are underwritten by financially sound and reputable
insurers. All such policies will remain in full force and effect and
will not in any way be affected by, or terminate or lapse by reason of
any of the transactions contemplated hereby.
(t) Disclosure. The Company confirms that, neither the Company
nor any other Person acting on its behalf has provided any of the
Purchasers or their agents or counsel with any information, other than
information relating to the Offering, that constitutes or might
constitute material, non-public information. The Company understands
and confirms that the Purchasers will rely on the foregoing
representations and covenants in effecting transactions in securities
of the Company. All disclosure provided to the Purchasers regarding the
Company, its business and the transactions contemplated hereby,
including the Schedules to this Agreement, furnished by or on behalf of
the Company with respect to the representations and warranties made
herein are true and correct with respect to such representations and
warranties and do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading. The Company acknowledges and agrees that no
Purchaser makes or has made any representations or warranties with
respect to the transaction contemplated hereby other than those
specifically set forth in Section 3.2 hereof.
3.2 Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) Organization; Authority. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate, limited
liability or partnership power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations thereunder. The execution,
delivery and performance by such Purchaser of the transactions
contemplated by this Agreement has been duly authorized by all
necessary corporate or similar action on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed
by such Purchaser, and when delivered by such Purchaser in accordance
with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with
its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
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enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief
or other equitable remedies, and (iii) with respect to the
indemnification provisions set forth in the Registration Rights
Agreement, as limited by public policy.
(b) General Solicitation. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement.
(c) No Public Sale or Distribution. Such Purchaser is
acquiring the Shares for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the
Securities Act; provided, however, that by making the representations
herein, such Purchaser does not agree to hold any of the Securities for
any minimum or other specific term and reserves the right to dispose of
the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the Securities Act. Such
Purchaser is acquiring the Securities hereunder in the ordinary course
of its business. Such Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute
any of the Securities.
(d) Accredited Investor Status. Such Purchaser is an
"accredited investor" as that term is defined in Rule 501(a) of
Regulation D.
(e) Reliance on Exemptions. Such Purchaser understands that
the Shares are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and such Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of such Purchaser set forth herein and on the signature
page hereto in order to determine the availability of such exemptions
and the eligibility of such Purchaser to acquire the Common Stock.
(f) Information; Confidentiality. Such Purchaser and its
advisors, if any, have been furnished with all publicly available
materials relating to the business, finances and operations of the
Company and such other publicly available materials relating to the
offer and sale of the Shares as have been requested by such Purchaser.
Such Purchaser and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Neither such inquiries nor
any other due diligence investigations conducted by such Purchaser or
its advisors, if any, or its representatives shall modify, amend or
affect such Purchaser's right to rely on the Company's representations
and warranties contained herein. Such Purchaser understands that its
investment in the Shares involves a high degree of risk. Such Purchaser
has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to its
acquisition of the Shares.
(g) No Governmental Review. Such Purchaser understands that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or
endorsement of the Shares or the fairness or suitability of the
investment in the Shares nor have such authorities passed upon or
endorsed the merits of the offering of the Shares.
(h) Experience of Such Purchaser. Such Purchaser, either alone
or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters,
including investing in biotechnology companies, so as to be capable of
evaluating the merits and risks of the prospective investment in the
Shares, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in
the Shares and, at the present time, is able to afford a complete loss
of such investment.
(i) Sales; Short Selling. From and after the date that the
Purchaser receives any information about the existence of the Offering,
and through the Closing Date, the Purchaser has not and shall not,
directly or indirectly, sell shares of the Common Stock in the open
Trading Market or
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elsewhere, and has not and shall not directly or indirectly, through
related parties, affiliates or otherwise sell "short" or "short against
the box" (as those terms are generally understood) any equity security
of the Company.
(j) Information Regarding Purchaser. Purchaser has provided
the Company with true, complete, and correct information regarding all
applicable items set forth in the on the signature page to this
Agreement.
The Company acknowledges and agrees that each Purchaser does not make
or has not made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in this
Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) The Securities may only be disposed of in compliance with
state and federal securities laws. In connection with any transfer of
Securities other than (i) pursuant to an effective registration
statement, (ii) to the Company, or (iii) to an Affiliate of a
Purchaser, the Company may require the transferor thereof to provide to
the Company an opinion of counsel selected by the transferor, the form
and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration
of such transferred Securities under the Securities Act. As a condition
of transfer, any such transferee shall agree in writing to be bound by
the terms of this Agreement and shall have the rights of a Purchaser
under this Agreement and the Registration Rights Agreement.
(b) The Purchasers agree to the imprinting of a legend on any
of the Securities in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY
A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
(c) Following the Closing Date, upon request from any of the
Purchasers, subject to applicable securities laws and approval of
Company Counsel, which will not be unreasonably withheld, the Company
will remove any of the restrictive legends (including the legend set
forth in Section 4.1(b)).
4.2 Furnishing of Information. During the Effectiveness Period (as such
term is defined in the Registration Rights Agreement), the Company covenants to
use its commercially reasonable efforts to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Exchange Act. During the Effectiveness Period, the Company further covenants to
use its commercially reasonable efforts to take such further action as any
Purchaser may reasonably request, all to the extent required from time to time
to enable such Person to sell such Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144.
9
4.3 Integration. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market.
4.4 Securities Laws Disclosure; Publicity. The Company shall, by 9:30
a.m., New York City time, on the Business Day following the Closing Date, issue
a press release to be disseminated in the public domain describing the terms of
the transactions contemplated by the Transaction Documents. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser, or
include the name of any Purchaser in any filing with the Commission or any
regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (i) to the extent such Purchaser purchases in excess of
200,000 Shares in the Offering, (ii) as required by federal securities law or
the Securities and Exchange Commission in connection with the registration
statement contemplated by the Registration Rights Agreement, and (iii) to the
extent such disclosure is required by law or Trading Market regulations, in
which case the Company shall provide the Purchasers with prior notice of such
disclosure permitted under subclause (ii) or (iii).
4.5 Shareholders Rights Plan. No claim will be made or enforced by the
Company or any other Person that any Purchaser is an "Acquiring Person" under
any shareholders rights plan or similar plan or arrangement in effect or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, in each case solely by
virtue of receiving Securities under the Transaction Documents or under any
other agreement between the Company and the Purchasers.
4.6 Reservation of Common Stock. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue Shares pursuant to this
Agreement.
4.7 Listing of Common Stock. The Company hereby agrees to use
commercially reasonable efforts to maintain the listing of the Common Stock on
the Trading Market, and as soon as reasonably practicable following the Closing
to list the applicable Shares on the Trading Market. The Company further agrees,
if the Company applies to have the Common Stock traded on any other Trading
Market, it will include in such application the Shares, and will take such other
action as is necessary or desirable in the opinion of the Purchasers to cause
the Shares to be listed on such other Trading Market as promptly as possible.
The Company will take all action reasonably necessary to continue the listing
and trading of its Common Stock on a Trading Market and will comply in all
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of the Trading Market.
4.8 Subsequent Financings Prior to Effective Date. From the date hereof
until after the Effective Date, other than as contemplated by this Agreement,
neither the Company nor any Subsidiary shall issue or sell any Common Stock or
Common Stock Equivalents, excluding the issuance of securities issued upon the
exercise of currently outstanding options and warrants.
4.9 Non-Public Information. The Company covenants and agrees that
neither it nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes
constitutes material non-public information, unless prior thereto such Purchaser
shall have executed a written agreement regarding the confidentiality and use of
such information. The Company understands and confirms that each Purchaser shall
be relying on the foregoing representations in effecting transactions in
securities of the Company.
10
ARTICLE V.
MISCELLANEOUS
5.1 Fees and Expenses. Except as set forth in Section 3.1(i), each
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties levied in
connection with the sale of the Securities.
5.2 Entire Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified on the signature pages attached hereto prior to 6:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number on the signature pages attached hereto on a day that is not a
Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c)
the Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (d) upon actual receipt by the party to
whom such notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments; Waivers. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by the Company and each Purchaser or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right.
5.6 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
5.7 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser. Any Purchaser may assign
any or all of its rights under this Agreement to any Person, provided such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the "Purchasers."
5.8 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.1.
5.9 Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and
any other Transaction Documents (whether brought against a party hereto or its
respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state or federal courts sitting in the
City of New York. Each party hereto hereby irrevocably submits to the
jurisdiction of the state and federal courts sitting in the City
11
of New York, New York, exclusive of all other jurisdictions, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. If either party shall commence an
action or proceeding to enforce any provisions of a Transaction Document, then
the prevailing party in such action or proceeding shall be reimbursed by the
other party for its attorneys fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or proceeding.
5.10 Survival. The representations, warranties, agreements and
covenants contained herein shall survive the Closing and delivery of the Shares.
5.11 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
5.12 Severability. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
5.13 Replacement of Securities. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
5.14 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Document. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of the Transaction Documents.
(Signature Page Follows)
12
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
KERYX BIOPHARMACEUTICALS, INC. Address for Notice:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
With copy to (which shall not constitute notice):
Xxxxxx & Bird LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. XxXxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(Signature Page Continues)
13
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: ADAGE CAPITAL MANAGEMENT, L.P.
/s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Date: February 12, 2004
250,000 $ $
------------------ --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
14
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
15
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: ATLAS EQUITY I, LTD.
/s/ Xxxxxx X. X'Xxxxxx
------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Manager
Date: February 13, 2004
200,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
16
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
17
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: DEERFIELD INTERNATIONAL LIMITED
/s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: President
Date: February 13, 2004
490,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
18
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
19
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: DEERFIELD PARTNERS, L.P.
/s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: President
Date: February 13, 2004
510,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
20
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
21
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
MAVERICK FUND II, LTD.
BY: MAVERICK CAPITAL, LTD.,
ITS INVESTMENT MANAGER
/s/ Xxxxxxxx Xxxxxx
----------------------
Name: Xxxxxxxx Xxxxxx
Title: Director of Fund Accounting
Date: February 12, 2004
172,700 $ $
------------------ --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
22
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
23
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
MAVERICK FUND, L.D.C.
BY: MAVERICK CAPITAL, LTD.,
ITS INVESTMENT MANAGER
/s/ Xxxxxxxx Xxxxxx
----------------------
Name: Xxxxxxxx Xxxxxx
Title: Director of Fund Accounting
Date: February 12, 2004
569,700 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
24
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
25
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
MAVERICK FUND USA, LTD.
BY: MAVERICK CAPITAL LTD.,
ITS INVESTMENT MANAGER
/s/ Xxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxx
Title: Director of Fund Accounting
Date: February 12, 2004
257,600 $ $
----------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
26
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
27
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: S.A.C. HEALTHCO FUND, LLC
/s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: President
Date: February 13, 2004
200,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
28
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
29
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: SONOSTAR VENTURES, LLC
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
Date: February 12, 2004
50,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
30
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
31
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BY: X. XXXX PRICE ASSOCIATES, INC.
/s/ Xxx Xxxxxxxxx
--------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
Date: February 13, 2004
500,000 $ $
---------------- --------------- ===============
NUMBER OF SHARES PRICE PER SHARE TOTAL PURCHASE
OF COMMON STOCK PRICE
SUBSCRIBED FOR
The above-signed Purchaser hereby provides the following information to the
Company:
1. Please provide the following information regarding the Purchaser:
PURCHASER NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
TELEPHONE: ( ) ______-________
FACSIMILE: ( ) ______-_________
EMAIL: _______________________
TAX ID #:_____________________
2. If different from the information provided in Item 1 above, please
provide the exact name that the Purchaser's Shares are to be registered in (this
is the name that will appear on the stock certificate(s)). The Purchaser may use
a nominee name if appropriate:
REGISTERED HOLDER OF THE SHARES NAME AND ADDRESS:
----------------------------------------------
----------------------------------------------
----------------------------------------------
FACSIMILE: ( ) ______-_________
32
3. Please describe the relationship between the Purchaser of the Shares
and the Registered Holder of the Shares listed in response to Item 2 above, if
different:
--------------------------------------------------------------------------------
4. If different from the information provided in Item 1 above, please
provide the mailing address of the Registered Holder of the Shares listed in
response to Item 2 above:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. If different from the information provided above, please provide the
number of shares of Common Stock beneficially owned (as determined in accordance
with SEC Rule 13d-3 under the Exchange Act) by the Purchaser immediately after
Closing. Explain the nature of such beneficial ownership, including shares of
Common Stock not held of record by the Purchaser. Disclose the details of any
rights to acquire shares of Common Stock.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Describe any position, office or other material relationship within the
past three years that the Purchaser has, or has had, with the Company or its
Affiliates other than as disclosed in the Prospectus included in the
Registration Statement? If none, please state "Not Applicable."
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE NOTE THAT IT IS THE PURCHASER'S OBLIGATION TO ADVISE THE COMPANY
PROMPTLY IF ANY OF THE FOREGOING INFORMATION CHANGES DURING THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT (EXCEPT DUE TO SALES OF SHARES OF COMMON STOCK
PURSUANT THERETO).
33
