Exhibit 4.2
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of December 16, 1997,
by and among IGEN International, Inc., a Delaware corporation (the "Company"),
and the entities whose names appear on the signature pages hereof. Such entities
are each referred to herein as a "Purchaser" and, collectively, as the
"Purchasers".
The Company wishes to sell and each Purchaser wishes to buy, subject to the
terms and conditions set forth in this Agreement, shares (the "Preferred
Shares") of the Company's Series B Convertible Preferred Stock (the "Preferred
Stock"), in reliance on the exemption from securities registration afforded by
the provisions of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
The Preferred Shares are convertible pursuant to the terms of a Certificate
of Designation relating to the Preferred Stock, the form of which is attached
hereto as Exhibit A (the "Certificate"), into shares of the Company's Common
Stock, $.001 par value (the "Common Stock"). The term (i) "Conversion Shares"
shall mean, at any time, the shares of Common Stock that are issued or issuable
upon conversion of the Preferred Shares, (ii) "Dividend Payment Shares" shall
mean the shares of Common Stock issued by the Company in payment of dividends on
the Preferred Shares in accordance with the terms of the Certificate and (iii)
"Securities" shall mean the Preferred Shares, the Conversion Shares and the
Dividend Payment Shares.
The parties hereto agree as follows:
1. PURCHASE AND SALE OF PREFERRED STOCK.
1.1 Agreement to Purchase and Sell. Upon the terms and subject to the
conditions set forth herein, the Company agrees to sell at the Closing (as
defined below), and each Purchaser agrees to purchase, the number of Preferred
Shares set forth on the signature page hereof executed by such Purchaser, at a
purchase price equal to one thousand dollars ($1,000) times the number of
Preferred Shares purchased by such Purchaser (the "Purchase Price").
1.2 Closing. Subject to the satisfaction of the conditions set forth
herein, the closing of the purchase and sale of the Preferred Shares (the
"Closing") will be deemed to occur when this Agreement, and the other
Transaction Documents (as defined below), have been executed and delivered by
the Company and each Purchaser, and full payment of the amount of the Purchase
Price payable by each Purchaser has been made by such Purchaser by wire transfer
of same day funds to an account designated by the Company against delivery by
the Company of duly executed certificates representing the Preferred Shares
purchased by such Purchaser hereunder. The date on which the Closing is deemed
to occur is referred to herein as the "Closing Date".
1.3 Certain Definitions. When used herein, (A) "business day" shall mean
any day on which the New York Stock Exchange and commercial banks in the city of
New York are open for business and (B) an "affiliate" of a party shall mean any
person or entity controlling, controlled by or under common control with that
party.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Each Purchaser, solely with respect to it, hereby makes the following
representations and warranties to the Company (which shall be true as of the
date hereof and as of the Closing Date) and agrees with the Company that:
2.1 Authorization; Enforceability. Such Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization with full power and authority to purchase the Preferred Shares and
to execute and deliver this Agreement. Such Purchaser has taken all action
necessary for the authorization, execution, delivery and performance of this
Agreement and the other Transaction Documents to which it is a party, and its
obligations hereunder and thereunder, and, upon execution and delivery thereof
by the Company, this Agreement and the other Transaction Documents to which it
is a party constitute such Purchaser's valid and legally binding obligations,
enforceable in accordance with their respective terms, except as such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity.
2.2 Accredited Investor; Investment Intent. Such Purchaser is an
accredited investor, as defined in Rule 501 of Regulation D under the Securities
Act. Such Purchaser is acquiring the Preferred Shares solely for its own account
for investment purposes as a principal and not with a view to the public resale
or distribution of all or any part thereof; provided, however that in making
such representation, such Purchaser does not agree to hold the Securities for
any minimum or specific term and reserves the right to sell, transfer or
otherwise dispose of the Securities at any time in accordance with the
provisions of this Agreement and with Federal and state securities laws
applicable to such sale, transfer or disposition.
2.3 Information. The Company has provided such Purchaser with certain
written information regarding the Company and has granted to such Purchaser the
opportunity to ask questions of and receive answers from representatives of the
Company, its officers, directors, employees and agents concerning the terms and
conditions of the purchase and sale of the Preferred Shares hereunder, and the
Company and its business and prospects.
2.4 Limitations on Disposition. Such Purchaser acknowledges that the
Preferred Shares are "restricted securities" under the Securities Act and that
under the Securities Act and applicable rules and regulations neither the
Preferred Shares nor any interest therein may be offered for sale or resold
absent registration under the Securities Act or unless pursuant to an exemption
therefrom.
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2.5 Legend. Such Purchaser understands that the Preferred Shares shall
bear at issuance the following legend:
"The security represented by this certificate has not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
or the securities laws of any state, and may not be offered or sold
unless a registration statement under the Securities Act and
applicable state securities laws shall have become effective with
regard thereto, or an exemption from registration under the Securities
Act and applicable state securities laws is available in connection
with such offer or sale. Such security is issued subject to the
provisions of (i) a Purchase Agreement, dated December , 1997, by
and among IGEN International, Inc. (the "Company") and the purchasers
named therein, and (ii) a Registration Rights Agreement, dated
December , 1997, by and among the Company and such purchasers."
Notwithstanding the foregoing, it is agreed that, as long as (A) the
resale or transfer (including without limitation a pledge) of any Security is
registered pursuant to an effective registration statement, (B) the holder
thereof provides the Company with an opinion of counsel, in form, substance and
scope customary for opinions of counsel in comparable transactions (the cost of
which shall be borne by such holder) to the effect that such Security can be
sold publicly without registration under the Securities Act, (C) such Security
can be sold pursuant to Rule 144 under the Securities Act ("Rule 144") and a
registered broker dealer provides to the Company a customary broker's Rule 144
letter and such holder delivers to the Company a customary seller's
representation letter, or (D) such Security is eligible for resale under Rule
144(k), such Security shall be issued without any legend or other restrictive
language and, with respect to any Security upon which such legend is stamped,
the Company shall issue new certificates without such legend to the holder
thereof upon request.
2.6 Fees. Such Purchaser is not obligated to pay any compensation or
other fee, cost or related expenditure to any underwriter, broker, agent or
other representative in connection with the transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties to
each Purchaser (which shall be true as of the date hereof and as of the Closing
Date) and agrees with such Purchaser that:
3.1 Organization, Good Standing and Qualification. Each of the Company
and its subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority to carry on its business as now
conducted. Each of the Company and its subsidiaries is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on the consolidated
business or financial condition of the
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Company and its subsidiaries taken as a whole. The term "subsidiaries" means
corporations in which the Company has an equity interest of greater than 50%.
3.2 Authorization; Consents. The Company has the requisite corporate
power and authority to enter into and perform its obligations under (i) this
Agreement, (ii) the Registration Rights Agreement and (iii) all other
agreements, documents, certificates or other instruments delivered by the
Company at the Closing (the instruments described in (i), (ii) and (iii) being
collectively referred to herein as the "Transaction Documents"), to execute and
perform its obligations under the Certificate, to issue and sell the Preferred
Shares to such Purchaser in accordance with the terms of the Certificate, to
issue the Conversion Shares upon conversion of the Preferred Shares in
accordance with the terms thereof and to issue the Dividend Payment Shares in
accordance with the terms of the Certificate. All corporate action on the part
of the Company by its officers, directors and stockholders necessary for (A) the
authorization, execution and delivery of, and the performance by the Company of
its obligations under, the Transaction Documents and (B) the authorization,
execution and filing of, and performance by the Company of its obligations under
the Certificate has been taken, and no further consent or authorization of the
Company, its Board of Directors, its stockholders, or any governmental agency or
organization or any other person or entity is required (pursuant to any rule of
the National Association of Securities Dealers, Inc. or otherwise).
3.3 Enforcement. The Transaction Documents and the Certificate constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their respective terms, except as such enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) general principles of equity.
3.4 Disclosure Documents; Material Agreements; Other Information. The
Company has filed with the Commission: (i) the Company's Annual Report on Form
10-K for the year ended Xxxxx 00, 0000, (xx) Quarterly Reports on Form 10-Q for
the quarters ended June 30, 1997 and September 30, 1997, (iii) all Current
Reports on Form 8-K required to be filed with the Commission since March 31,
1997 and (iv) the Company's definitive Proxy Statement for its 199[7] Annual
Meeting of Stockholders (collectively, the "Disclosure Documents"). The Company
is not aware of any event that would require the filing of, or with respect to
which the Company intends to file, a Form 8-K after the Closing. Each
Disclosure Document, as of the date of the filing thereof with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder, and, as of the date of such filing, such Disclosure
Document did not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. All material agreements required to be filed as exhibits to the
Disclosure Documents have been filed as required. To the best of the Company's
knowledge, neither the Company nor any of its subsidiaries is in breach of any
agreement to which it is a party or by which it is bound where such breach is
reasonably likely to have a material adverse effect on the consolidated
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business or financial condition of the Company and its subsidiaries taken as a
whole. To the best of the Company's knowledge, except as set forth in the
Disclosure Documents or any schedule or exhibit attached hereto, the Company has
no liabilities, contingent or otherwise, other than liabilities incurred in the
ordinary course of business which, under generally accepted accounting
principles, which are not required to be reflected in the Company's financial
statements and which, individually or in the aggregate, are not material to the
consolidated business or financial condition of the Company and its subsidiaries
taken as a whole. The financial statements of the Company included in the
Disclosure Documents, as of their respective dates (A) complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the Commission with respect thereto and (B) have been
prepared in accordance with generally accepted accounting principles
consistently applied at the times and during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end adjustments).
The written information provided to the Purchaser as described in paragraph 2.3
above does not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein,in light of the circumstances under which they were made, not misleading
and does not include any material, non-public information.
3.5 Capitalization. The capitalization of the Company as of the date
hereof, including its authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
the Company's stock option plans, the number of shares issuable and reserved for
issuance pursuant to securities (other than the Preferred Shares) exercisable
for, or convertible into or exchangeable for any shares of Common Stock and the
number of shares initially to be reserved for issuance upon conversion of the
Preferred Shares is set forth on Schedule 3.5 hereto. All of such outstanding
shares of capital stock have been, or upon issuance will be, validly issued,
fully paid and non-assessable. No shares of the capital stock of the Company
are subject to preemptive rights or any other similar rights of the stockholders
of the Company or any liens or encumbrances created by or through the Company.
Except as disclosed on Schedule 3.5, or as contemplated herein, as of the date
of this Agreement and as of the Closing, there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exercisable
or exchangeable for, any shares of capital stock of the Company or any of its
subsidiaries, or arrangements by which the Company or any of its subsidiaries is
or may become bound to issue additional shares of capital stock of the Company
or any of its subsidiaries.
3.6 Valid Issuance. The Preferred Shares are duly authorized and, when
issued, sold and delivered in accordance with the terms hereof, (i) will be duly
and validly issued, fully paid and nonassessable, free and clear of any taxes,
liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company, (ii) based in part upon the representations of
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such Purchaser in this Agreement, will be issued, sold and delivered in
compliance with all applicable Federal and state securities laws and (iii) will
be entitled to all of the rights, preferences and privileges set forth in the
Certificate. The Conversion Shares are duly authorized and reserved for
issuance and, when issued upon conversion of the Preferred Shares in accordance
with the terms thereof, will be duly and validly issued, fully paid and
nonassessable, free and clear of any taxes, liens, claims, preemptive or similar
rights or encumbrances imposed by or through the Company. The Dividend Payment
Shares are duly authorized and, upon the issuance thereof in accordance with the
terms of the Certificate, will be duly and validly issued, fully paid and
nonassessable, free and clear of any taxes, liens, claims, preemptive or similar
rights or encumbrances imposed by or through the Company.
3.7 No Conflict with Other Instruments. Except as set forth on Schedule
3.7, neither the Company nor any of its subsidiaries is in violation of any
provisions of its Certificate of Incorporation, Bylaws or any other governing
document as amended and in effect on and as of the date hereof or, to the best
of the Company's knowledge, in default (and no event has occurred which, with
notice or lapse of time or both, would constitute a default) under any provision
of any instrument or contract to which it is a party or by which it is bound, or
of any provision of any Federal or state judgment, writ, decree, order, statute,
rule or governmental regulation applicable to the Company, which would have a
material adverse effect on the consolidated business or financial condition of
the Company and its subsidiaries taken as a whole. The execution, delivery and
performance of the Transaction Documents, the execution and filing of the
Certificate, and the consummation of the transactions contemplated hereby and
thereby (including without limitation, the issuance of the Preferred Shares and
the reservation for issuance and issuance of the Conversion Shares and the
Dividend Payment Shares) will not result in any such violation or be in conflict
with or constitute, with or without the passage of time and giving of notice,
either a default under any such provision, instrument or contract or an event
which results in the creation of any lien, charge or encumbrance upon any assets
of the Company or of any of its subsidiaries or the triggering of any preemptive
or anti-dilution rights or rights of first refusal or first offer on the part of
holders of the Company's securities.
3.8 Financial Condition; Taxes; Litigation.
3.8.1 The Company's financial condition is, in all material respects,
as described in the Disclosure Documents, except for changes in the ordinary
course of business and normal year-end adjustments that are not, in the
aggregate, materially adverse to consolidated business or financial condition of
the Company or its subsidiaries taken as a whole. Except as otherwise described
in the Disclosure Documents, there have been no material adverse changes to the
Company's business, operations, properties, financial condition, prospects or
results of operations since the date of the Company's most recent audited
financial statements contained in the Disclosure Documents.
3.8.2 The Company has filed all tax returns required to be filed by it
or obtained extensions of the due date for such returns and paid all taxes
which are due, except for taxes
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which it reasonably disputes or which could not reasonably be expected to
have a material adverse effect on the consolidated business or financial
condition of the Company and its subsidiaries taken as a whole.
3.8.3 Except as set forth in Schedule 3.8.3, each of the Company and
its subsidiaries is not the subject of any pending or, to the Company's
knowledge, threatened inquiry, investigation or administrative or legal
proceeding by the Internal Revenue Service, the taxing authorities of any state
or local jurisdiction, the Commission or any state securities commission or
other governmental or regulatory entity which could reasonably be expected to
have a material adverse effect on the consolidated business or financial
condition of the Company and its subsidiaries taken as a whole.
3.8.4 Except as set forth in Schedule 3.8.4, there is no material
claim, litigation or administrative proceeding or inquiry pending, or, to the
best of the Company's knowledge, threatened, against the Company or any of its
subsidiaries, or against any officer, director or employee of the Company or any
such subsidiary in connection with such person's employment therewith. Neither
the Company nor any of its subsidiaries is a party to or subject to the
provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which could reasonably be expected to have
a material adverse effect on the consolidated business or financial condition of
the Company and its subsidiaries.
3.9 Reporting Company; Form S-3. The Company is subject to the reporting
requirements of the Exchange Act, has a class of securities registered under
Section 12 of the Exchange Act, and has filed all reports required thereby. The
Company is eligible to register the Conversion Shares and the Dividend Payment
Shares for resale on a registration statement on Form S-3 under the Securities
Act.
3.10 Acknowledgement of Dilution. The Company acknowledges that the
issuance of (i) the Conversion Shares upon conversion of the Preferred Shares in
accordance with the terms of the Certificate and (ii) the Dividend Payment
Shares in accordance with the terms of the Certificate may result in dilution of
the outstanding shares of Common Stock, which dilution may be substantial under
certain market conditions. The Company further acknowledges that its obligation
(x) to issue Conversion Shares upon conversion of the Preferred Shares and (y)
to issue Dividend Payment Shares in accordance with the terms of the Certificate
is unconditional and absolute regardless of the effect of any such dilution.
The Board of Directors of the Company has reviewed the Transaction Documents,
and has determined that the transactions contemplated thereby are in the best
interests of the Company and its stockholders.
3.11 Intellectual Property. The Company owns or possesses adequate rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property rights necessary to conduct the business now operated by
them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any
such rights that, if determined adversely to the Company or any of its
subsidiaries,
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would individually or in the aggregate have a material adverse effect on the
consolidated business or financial condition of the Company and its subsidiaries
taken as a whole.
3.12 Registration Rights; Rights of Participation. Except as described on
Schedule 3.12 hereto, (A) the Company has not granted or agreed to grant to any
person or entity any rights (including "piggy-back" registration rights) to have
any securities of the Company registered with the Commission or any other
governmental authority and (B) no person or entity, including, but not limited
to, current or former stockholders of the Company, underwriters, brokers, agents
or other third parties, has any right of first refusal, preemptive right, right
of participation, or any similar right to participate in the transactions
contemplated by the Certificate, this Agreement or any other Transaction
Document which has not been waived.
3.13 Trading on Nasdaq. The Common Stock is authorized for quotation on
the Nasdaq National Market system, and trading in the Common Stock on Nasdaq has
not been suspended. The Company is (or will be at the Closing) in full
compliance with the designation criteria of the Nasdaq National Market, and does
not reasonably anticipate that the Common Stock will lose its designation as a
Nasdaq National Market security, whether by reason of the transactions
contemplated by this Agreement or the other Transaction Documents or otherwise.
Stockholder approval for the issuance of the Preferred Shares is not required
under NASD Rule 4460.
3.14 Solicitation. Neither the Company nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, (i) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Preferred Shares or (ii) has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under any
circumstances that would require registration of the Preferred Shares under the
Securities Act.
3.15 Fees. Except as described on Schedule 3.15 hereto, the Company is not
obligated to pay any compensation or other fee, cost or related expenditure to
any underwriter, broker, agent or other representative in connection with the
transactions contemplated hereby.
3.16 Foreign Corrupt Practices. To the knowledge of the Company, neither
the Company, nor any of its subsidiaries nor any director, officer, agent,
employee or other person acting on behalf of the Company or any subsidiary, has
(i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or
employee, or (iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended, or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government
official or employee.
3.17 Other Issuances of Securities. The Company has not issued (and will
not issue) any shares of Common Stock or shares of any series of preferred stock
(other than the Preferred Shares) or other securities or instruments convertible
into, exchangeable for or otherwise entitling
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the holder thereof to acquire shares of Common Stock which would be integrated
with the sale of the Preferred Shares, or the issuance of the Conversion Shares
upon conversion thereof, for purposes of determining whether stockholder
approval is required under the designation criteria of the Nasdaq National
Market.
4. COVENANTS OF THE COMPANY.
4.1 Corporate Existence. The Company shall, so long as any Purchaser or
any affiliate of such Purchaser beneficially owns any Securities, maintain its
corporate existence in good standing and shall pay all taxes when due except for
taxes which the Company reasonably disputes or which could not reasonably be
expected to have a materially adverse change on the consolidated business or
financial condition of the Company and its subsidiaries.
4.2 Provision of Information. The Company shall provide each Purchaser
with copies of its annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and proxy statements and other materials sent to
stockholders, in each such case promptly after filing thereof with the
Commission, until the conversion or redemption of all of the Preferred Shares
held by such Purchaser.
4.3 Form D; Blue-Sky Qualification. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly upon filing. The Company shall, on or
before the Closing, take such action as is necessary to qualify the Securities
for sale under applicable state or "blue-sky" laws or obtain an exemption
therefrom, and shall provide evidence of any such action to such Purchaser.
4.4 Reporting Status. As long as such Purchaser or any affiliate of such
Purchaser beneficially owns any Securities, and until the date on which any of
the foregoing may be sold to the public pursuant to Rule 144(k) (or any
successor rule or regulation), (i) the Company shall timely file with the
Commission all reports required to be so filed pursuant to the Exchange Act and
(ii) the Company shall not terminate its status as an issuer required by the
Exchange Act to file reports thereunder even if the Exchange Act or the rules or
regulations thereunder would permit such termination.
4.5 Use of Proceeds. The Company shall use the proceeds from the sale of
the Preferred Shares for general corporate purposes.
4.6 Listing. The Company shall, as soon as practicable following the
Closing, secure the designation and quotation of the Conversion Shares and
Dividend Payment Shares on the Nasdaq National Market and shall use its best
efforts to maintain the designation of the Common Stock on the Nasdaq National
Market, the New York Stock Exchange or the American Stock Exchange.
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4.7 Reservation of Common Stock. The Company shall at all times have
authorized and reserved for issuance, free from any preemptive rights, solely
for the purpose of effecting conversions of the Preferred Shares hereunder, such
number of shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all of the Preferred Shares then outstanding (the
"Reserved Amount"). As of the Closing Date, the Reserved Amount shall be equal
to no less than 175% of the number of shares of Common Stock issuable upon
conversion of all of the Preferred Shares purchased by the Purchasers at the
Closing (assuming for such purpose that the Preferred Shares are convertible in
full at such time). If at any time the Reserved Amount is less than 125% of the
number of Conversion Shares issuable upon conversion of all of the Preferred
Shares then outstanding, the Company shall take immediate action (including
seeking stockholder authorization) to increase the Reserved Amount to no less
than 175% of the number of Conversion Shares into which such outstanding
Preferred Shares are then convertible. No Purchaser shall be issued, upon
conversion of a Preferred Shares of Common Stock in an amount greater than the
product of (A) the Reserved Amount in effect on the date on which notice of such
conversion or exercise is delivered to the Company pursuant to the terms of the
Certificate times (B) a fraction, the numerator of which is the number of
Preferred Shares purchased by such Purchaser hereunder and the denominator of
which is the number of Preferred Shares purchased by the Purchasers hereunder.
The Company shall not reduce the number of shares reserved for issuance
hereunder without the written consent of the holders of at least 66% of the then
outstanding number of Preferred Shares.
4.8 Use of Purchaser Name. The Company shall not use, directly or
indirectly, any Purchaser's name in any advertisement, announcement, press
release or other similar communication unless it has received the prior written
consent of such Purchaser for the specific use contemplated; provided, however,
that the Company may respond to inquiries regarding the identity of the
Purchasers from securities analysts or the media.
4.9 Company's Instructions to Transfer Agent. On or prior to the Closing,
the Company shall execute and deliver irrevocable instructions to its transfer
agent (the "Transfer Agent") (i) to issue certificates representing Conversion
Shares upon conversion of Preferred Shares in accordance with the terms thereof
and receipt of (x) a valid Conversion Notice (as defined in the Certificate)
from a Purchaser, and (y) instructions from the Company pursuant to the
Certificate regarding the number of Conversion Shares and Dividend Payment
Shares (if any) to be issued in the name of such Purchaser or its nominee, (ii)
to issue certificates representing the Dividend Payment Shares upon the issuance
thereof in accordance with the Certificate and (iii) to deliver such
certificates to such Purchaser no later than the close of business on the third
(3rd) business day following the related Conversion Date or the Dividend Payment
Date (each as defined in the Certificate). The Company represents to and agrees
with each Purchaser that it will not give any instruction to the Transfer Agent
that will conflict with the foregoing instruction or otherwise restrict such
Purchaser's right to convert the Preferred Shares held by such Purchaser or to
receive Conversion Shares or Dividend Payment Shares in accordance with the
terms of the Certificate. In the event that the Company's relationship with the
Transfer Agent should be terminated for any reason, the Transfer Agent shall
continue acting as transfer agent pursuant to
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the terms hereof until such time that a successor transfer agent is appointed by
the Company and agrees to be bound by the terms hereof.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Purchaser's Obligations at Closing. Each Purchaser's
obligations at the Closing, including without limitation its obligation to
purchase the Preferred Shares to be purchased by it hereunder, are conditioned
upon the fulfillment of each of the following events:
(a) the representations and warranties of the Company set forth in
this Agreement shall be true and correct in all material respects
as of the Closing Date of as if made on such date;
(b) the Company shall have complied with or performed all of the
agreements, obligations and conditions set forth in this
Agreement that are required to be complied with or performed by
the Company on or before the Closing;
(c) the Company shall have delivered to such Purchaser a
certificate, signed by an officer of the Company, certifying
that the conditions specified in paragraphs (a) and (b)
above have been fulfilled;
(d) the Company shall have delivered to such Purchaser an opinion of
counsel for the Company, dated as of the date of the Closing, in
the form attached as Exhibit 5.1;
(e) The Company shall have filed the Certificate with the Secretary
of State of the State of Delaware and furnished such Purchaser
with a file-stamped copy thereof;
(f) the Company shall have executed and delivered the Registration
Rights Agreement;
(g) there shall have been no material adverse changes in the
Company's consolidated business or financial condition since the
date of the Company's most recent financial statements contained
in the Disclosure Documents;
(h) the Common Stock shall be designated for quotation and actively
traded on the Nasdaq National Market; and
(j) the Company shall have authorized and reserved for issuance upon
conversion of the Preferred Shares 175% of the number of shares
of Common Stock issuable upon conversion all of the Preferred
Shares issuable at the Closing.
-11-
5.2 Conditions to Company's Obligations at Closing. The Company's
obligation at the Closing to issue and sell Preferred Shares to a Purchaser
hereunder is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions. The obligation of the Company to issue and sell
Preferred Shares to any Purchaser hereunder is distinct and separate from its
obligation to issue and sell Preferred Shares to any other Purchaser hereunder
and the failure by one or more Purchasers to fulfill the conditions set forth
herein or to consummate the purchase of Preferred Shares hereunder will not
relieve the Company of its obligations with respect to any other Purchaser.
(a) the representations and warranties of the applicable Purchaser
shall be true and correct in all material respects as of the
Closing Date as if made on such date; and
(b) the applicable Purchaser shall have complied with or performed
all of the agreements, obligations and conditions set forth in
this Agreement that are required to be complied with or performed
by such Purchaser on or before the Closing.
6. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless each Purchaser and its
officers, directors, employees and agents, and each person who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act (each, a
"Purchaser Indemnified Party") against any losses, claims, damages, liabilities
or reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) as incurred, joint or several, to which it, they or
any of them, may become subject and not otherwise reimbursed, arising out of or
in connection with the breach by the Company of any of its representations,
warranties or covenants made herein; provided, that the Company shall not have
any obligation to any Purchaser Indemnified Party with respect to any liability
to the extent such liability arises from the gross negligence or willful
misconduct on the part of such Purchaser Indemnified Party as determined by a
court of competent jurisdiction.
Each Purchaser agrees to indemnify and hold harmless the Company and its
officers, directors, employees and agents, and each person who controls the
Company within the meaning of the Securities Act or the Exchange Act (each, a
"Company Indemnified Party") (a Purchaser Indemnified Party and a Company
Indemnified Party are each hereinafter referred to as an "Indemnified Party")
against any losses, claims, damages, liabilities or expenses (including the fees
and disbursements of counsel) as incurred, joint or several, to which it, they
or any of them, may become subject and not otherwise reimbursed, arising out of
or in connection with the breach by such Purchaser of any of its
representations, warranties or covenants made herein; provided, that such
Purchaser shall not have any obligation to any Company Indemnified Party with
respect to any liability to the extent such liability arises from the gross
negligence or willful misconduct on the part of such Company Indemnified Party
as determined by a court of competent jurisdiction.
-12-
Promptly after receipt by an Indemnified Party of notice of the
commencement of any action pursuant to which indemnification may be sought
hereunder, such Indemnified Party will, if a claim in respect thereof is to be
made against the other party (the "Indemnifying Party"), deliver to the
Indemnifying Party a written notice of the commencement thereof and the
Indemnifying Party shall have the right to participate in and to assume the
defense thereof with counsel reasonably selected by the Indemnifying Party,
provided, however, that an Indemnified Party shall have the right to retain its
own counsel, with the reasonably incurred fees and expenses of such counsel to
be paid by the Indemnifying Party, if representation of such Indemnified Party
by the counsel retained by the Indemnifying Party would be inappropriate due to
actual or potential conflicts of interest under applicable standards of
professional conduct between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the Indemnifying Party within a reasonable time of the commencement of
any such action will not relieve the Indemnifying Party of any of its
obligations hereunder with respect to such action except to the extent such
failure is prejudicial to the Indemnifying Party's ability to defend any such
action.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of pending or threatened action in
respect of which an Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on any claims that are the subject matter of such action. An
Indemnifying Party will not be liable for any settlement of any action or claim
effected without its written consent.
7. MISCELLANEOUS.
7.1 Survival; Severability. The representations, warranties,
covenants and indemnities made by the parties herein shall survive the Closing
notwithstanding any due diligence investigation made by or on behalf of the
party seeking to rely thereon. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that in such case the parties shall
negotiate in good faith to replace such provision with a new provision which is
not illegal, unenforceable or void, as long as such new provision does not
materially change the economic benefits of this Agreement to the parties.
7.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Each Purchaser may assign its rights hereunder, in
connection with any private sale or transfer of Preferred Shares, as long as, as
a condition precedent to such transfer, the transferee executes an
acknowledgment agreeing to be bound by the applicable provisions of this
Agreement, in which case the term "Purchaser" shall be deemed to refer to such
transferee as though such transferee were an original signatory hereto.
-13-
7.3 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at the Closing, and no action taken by any Purchaser pursuant
hereto or 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 with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of the Certificate, 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.
7.4 No Reliance. Each party acknowledges that (i) it has such
knowledge in business and financial matters as to be fully capable of evaluating
the Certificate, this Agreement, the other Transaction Documents and the
transactions contemplated hereby and thereby, (ii) it is not relying on any
advice or representation of any other party (other than those contained or
described in this Agreement or the other Transaction Documents) in connection
with entering into this Agreement, the other Transaction Documents or such
transactions, (iii) it has not received from any such party any assurance or
guarantee as to the merits (whether legal, regulatory, tax, financial or
otherwise) of entering into this Agreement or the other Transaction Documents or
the performance of its obligations hereunder and thereunder, and (iv) it has
consulted with its own legal, regulatory, tax, business, investment, financial
and accounting advisors to the extent that it has deemed necessary, and has
entered into this Agreement and the other Transaction Documents based on its own
independent judgment and on the advice of its advisors as it has deemed
necessary, and not on any view (whether written or oral) expressed by any such
party.
7.5 Remedies. The remedies provided to a Purchaser in this Agreement
shall be cumulative and in addition to all other remedies available to such
Holder hereunder, at law or in equity (including without limitation a decree of
specific performance and/or other injunctive relief), no remedy contained herein
shall be deemed a waiver of compliance with the provisions giving rise to such
remedy and nothing contained herein shall limit such Purchaser's right to pursue
actual damages for any failure by the Company to comply with the terms of this
Agreement.
7.6 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to the conflict of laws
provisions thereof. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, 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,
-14-
action or proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
7.8 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
7.9 Notices. Any notice, demand or request required or permitted to
be given by the Company or a Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with a hard copy to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to an overnight courier and (iii) on the third business day
after deposit in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
If to the Company:
IGEN International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Messrs. Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Fax:
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
-15-
and if to any Purchaser, to such address for such Purchaser as shall appear on
the signature page hereof executed by such Purchaser, or as shall be designated
by such Purchaser in writing to the Company.
7.10 Expenses. Except as otherwise provided herein, each of the
Company and the Purchasers shall pay all costs and expenses that it incurs in
connection with the negotiation, execution, delivery and performance of this
Agreement.
7.11 Entire Agreement; Amendments. This Agreement and the other
Transaction Documents (together with the Certificate) constitute the entire
agreement between the parties with regard to the subject matter hereof and
thereof, superseding all prior agreements or understandings, whether written or
oral, between the parties. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and the holders of at least 2/3 of the
Preferred Shares then outstanding, and no provision hereof may be waived other
than by a written instrument signed by the party against whom enforcement of any
such waiver is sought.
[Remainder of Page Intentionally Left Blank]
-16-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
IGEN INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
PURCHASER NAME: The Xxxxxxxxx Xxxxxxxx Black Bear Fund, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
ADDRESS:
c/x Xxxxxxxxx Xxxxxxxx Funds
000 Xxxxxxxxxx Xx., Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
c/x Xxxxx Xxxxxx
0000 Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx- Prime Broker Dept.
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 2,560
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: The Xxxxxxxxx Xxxxxxxx Black Bear Offshore Fund, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
ADDRESS:
c/x Xxxxxxxxx Xxxxxxxx Funds
000 Xxxxxxxxxx Xx., Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
c/x Xxxxx Xxxxxx
0000 Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx- Prime Broker Dept.
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 615
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: The Xxxxxxxxx Xxxxxxxx Black Bear Pacific Master Fund Unit
Trust
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
ADDRESS:
c/x Xxxxxxxxx Xxxxxxxx Funds
000 Xxxxxxxxxx Xx., Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
c/x Xxxxx Xxxxxx
0000 Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx- Prime Broker Dept.
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 325
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Credit Suisse First Boston Corporation
By: /s/ Xxxxxx F.X. X'Xxxx
-----------------------------
Name: Xxxxxx F.X. O'Mara
Title: Managing Director
ADDRESS:
Xxxxxxx [Illegible], Xxxxxx F.X. O'Mara
Credit Suisse First Boston Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Xxxxxxx X. Xxxxxx, Esq.
Credit Suisse First Boston Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 2,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Permal Noscal, Ltd.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager & Principal Apex Capital, LLC
ADDRESS:
Apex Capital, LLC
Xxxx Xxxxx & Xxxxxx Xxx, Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Tel:
Fax:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 3,000,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Zaxis Partners, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager & Principal Apex Capital, LLC-General Partner
ADDRESS:
Apex Capital, LLC
Xxxx Xxxxx & Xxxxxx Xxx, Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Tel:
Fax:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 375,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Xxxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager & Principal Apex Capital, LLC
ADDRESS:
Apex Capital, LLC
Xxxx Xxxxx & Xxxxxx Xxx, Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Tel:
Fax:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 245,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Pollat, Xxxxx & Co. Inc.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager & Principal Apex Capital, LLC
ADDRESS:
Apex Capital, LLC
Xxxx Xxxxx & Xxxxxx Xxx, Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Tel:
Fax:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 85,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Quadra Appreciation Fund, Inc.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager & Principal Apex Capital, LLC
ADDRESS:
Apex Capital, LLC
Xxxx Xxxxx & Xxxxxx Xxx, Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Tel:
Fax:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 35,000
/ / Check here if Purchaser does not intend to be bound by the 4.9%
limitation contained in subparagraph II.G.2 of Certificate..
-17-
PURCHASER NAME: Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx Trustee for the Xxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxxxx Revocable Trust, dated
March 8, 1993
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager and Principal
Apex Capital, LLC
ADDRESS:
Apex Capital, LLP
Xxxx Xxxxx & Xxxxxx Xxx
Xxxxx 000-X
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 10,000
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: KA Investments LDC
By: /s/ [Authorized Investment Advisor] By: /s/ Xxxxx Xxxxxxx
----------------------------------- --------------------
Name: [Illegible] Name: Xxxxx Xxxxxxx
Title: Title:
ADDRESS:
KA Investments XXX
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxx
P.O. Box 705
Georgetown, Grand Cayman
Cayman Islands, B.W.I.
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 2,000
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Gleneagles
By: The Palladin Group, L.P.
Title: Investment Advisor
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
ADDRESS:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 125
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Colonial Penn
By: The Palladin Group, L.P.
Title: Investment Advisor
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
ADDRESS:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 125
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Xxxxxx Health Sciences Trust
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Vice President
ADDRESS:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: 0-000-000-0000
Fax: (000) 000-0000
WITH COPIES OF NOTICES SENT TO:
Xxxxx Xxxxxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 0-000-000-0000
Fax: (000) 000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 4000
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Xxxxxx Partners, L.P.
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: General Partner
ADDRESS:
000 Xxxxxxxxx Xxx., Xxxxx 000X
Xxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 1,250
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: EDJ Limited
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Investment Advisor
ADDRESS:
Deltec Panamerica Trust Co.
Deltec House, Xxxxxx Xxx
P.O. Box N-3229
Nassau
The Bahamas
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH COPIES OF NOTICES SENT TO:
Xxxx Xxxxxx
Xxxxxx Capital Management Co.
000 Xxxxxxxxx Xxx., Xxxxx 000X
Xxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 250
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: White Rock Capital Offshore, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title:
ADDRESS:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Xxxxx Xxxxxxxx International (BVI) Limited
Main Street, Xxxxxx Building
P.O. Box 3186
Road Town, Tortle
British Virgin Islands
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 600
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Quantum Partners LDC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title:
ADDRESS:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
Xxxxx Fund Management LLC
Attn: Xxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 2,500
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Xxxxxxx Capital Diversified Fund, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title:
ADDRESS:
c/o White Rock Capital
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 400
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: White Rock Capital Partners, L.P.
By: /s/ White Rock Capital Management, L.P.
---------------------------------------
Name: White Rock Capital Management
By: /s/ White Rock Capital, Inc.
-----------------------------
Name: White Rock Capital, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
ADDRESS:
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 1,000
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Prism Partners I
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing General Partner of Prism Partners I
ADDRESS:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 1,500
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: GPZ Trading
By: /s/ Xxxx X. Xxxxxxxx III
---------------------------
Name: Xxxx X. Xxxxxxxx III
Title: Member
ADDRESS:
000 X. XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 500
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: Triton Capital Investments
By: Inter Caribbean Services Limited
By: /s/ [Authorized Officer]
------------------------
Name: [Illegible]
Title: Secretary
ADDRESS:
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 750
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
PURCHASER NAME: JMG Capital Partners, L.P.
By: /s/ Xxxxxxxx Xxxxxx
----------------------
Name: Xxxxxxxx Xxxxxx
Title: General Partner
ADDRESS:
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
WITH COPIES OF NOTICES SENT TO:
NUMBER OF PREFERRED SHARES
TO BE PURCHASED: 750
/ / Check here if Purchaser does not intend to be bound by the 4.9% limitation
contained in subparagraph II.G.2 of the Certificate.
-17-
