Exhibit A
COMMON STOCK PURCHASE AGREEMENT
THIS AGREEMENT dated as of December 30, 2002 is entered into by and between
Photogen Technologies, Inc., a Nevada corporation (the "Company"), and the
undersigned purchaser (the "Purchaser").
WHEREAS, the Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "1933 Act"); and
WHEREAS, the Purchaser wishes to purchase from the Company, and the Company
wishes to sell and issue to the Purchaser, shares of Common Stock of the
Company, $0.001 par value per share (the "Common Stock"), upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound by the terms and conditions of this Agreement, the parties hereto
hereby agree as follows.
1. Purchase and Sale of Common Stock.
1.1. Offering. Subject to the terms and conditions of this Agreement,
at the Closing the Company shall sell and issue to the Purchaser, and the
Purchaser shall purchase from the Company, the number of shares of Common Stock
(the "Shares") equal to the investment amount set forth opposite the Purchaser's
name on the signature page hereof divided by the Per Share Purchase Price (as
defined below). The "Per Share Purchase Price" shall be $1.08 per Share.
1.2. Proceeds. Proceeds from the sale of the Shares will be used only
for the following purposes and appropriately related administrative costs, in
the following order of priority, subject to changes authorized by a majority of
the Board of Directors of the Company (the "Board") after the Closing:
(a) To provide bridge loan or similar interim financing to
Alliance Pharmaceuticals, Inc.
(b) To acquire Alliance Pharmaceuticals, Inc. (by merger, purchase
of stock or otherwise) or all or a portion of its assets (by acquisition,
license or otherwise).
(c) To acquire or license other compounds to build a product
pipeline for the Company.
Pending use of the proceeds in accordance with the preceding sentence, the
proceeds will be invested in securities issued or guaranteed by the United
States, national bank repurchase agreements secured by such securities or such
other types of investments as may be approved by a majority of the Board after
the Closing, but in no event in such a manner that would cause the Company to be
deemed an Investment Company as defined in the Investment Company Act of 1940,
as amended.
2. The Closing. The closing of the sale and purchase of the Shares
pursuant to this Agreement (the "Closing") shall take place at the offices of
the Company or its counsel as soon as practicable but not later than December
23, 2002, or at such other time, date and place as are mutually
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agreeable to the Company and the Purchaser (the "Closing Date"). At the Closing,
the Company shall deliver to each Purchaser a certificate representing the
Shares purchased by such Purchaser of Common Stock registered in the name of
such Purchaser (and bearing an appropriate legend limiting transferability
except in accordance with applicable securities laws and upon delivery of an
opinion of counsel acceptable to the Company). The purchase price for the Shares
shall be paid by wire transfer, certified or cashier's check or another method
acceptable to the Company. If at the Closing any of the conditions specified in
Section 5.1 of this Agreement shall not have been fulfilled, each Purchaser
shall, at its election, be relieved of all of its obligations under this
Agreement without thereby waiving any other right it may have by reason of such
failure or such non-fulfillment. If at the Closing any of the conditions
specified in Section 5.2 of this Agreement shall not have been fulfilled, the
Company shall, at its election, be relieved of all of its obligations under this
Agreement without thereby waiving any other right it may have by reason of such
failure or such non-fulfillment.
3. Representations of the Company. The Company hereby represents and
warrants to the Purchaser as follows:
3.1. Organization; Amended Articles. The Company is a corporation duly
organized, validly existing and in corporate good standing under the laws of the
State of Nevada and is qualified to do business as a foreign corporation in each
jurisdiction in which such qualification is required, except where the failure
to be so qualified would not have, either individually or in the aggregate, a
material adverse effect on the business, operations, financial condition,
assets, prospects, liabilities or contractual rights of the Company, whether
individually or taken as a whole (a "Material Adverse Effect"). The Company has
duly authorized the sale and issuance, pursuant to the terms of this Agreement,
and an adequate number shares of its Common Stock are authorized and available
for purchase hereunder, having the rights, restrictions, privileges and
preferences set forth in the Amended and Restated Articles of Incorporation, as
amended to date (the "Amended Articles").
3.2. Corporate Power. The Company has all required corporate power and
authority to own its property, to carry on its business as presently conducted
or contemplated, to enter into and perform this Agreement, the Registration
Rights Agreement by and among the Company and the Purchaser, in the form
attached as Exhibit A (the "Registration Rights Agreement") and the other
agreements, documents and instruments contemplated hereby (collectively with
this Agreement, the "Financing Documents"), and generally to carry out the
transactions contemplated hereby. The copies of the Amended Articles and Bylaws
of the Company, as amended to date, which have been filed by the Company with
the SEC, are correct and complete at the date hereof. The Company is not in
violation of any term of its Amended Articles or Bylaws, each as amended, or in
violation of any term of any agreement, instrument, judgment, decree, order,
statute, rule or government regulation applicable to the Company or to which the
Company is a party, where any violation, noncompliance or default would result
in a Material Adverse Effect.
3.3. Authorization. The Financing Documents are valid and binding
obligations of the Company, enforceable in accordance with their terms. The
execution, delivery and performance of the Financing Documents have been duly
authorized by all necessary corporate or other action of the Company. The
issuance, sale and delivery of the Shares in accordance with this Agreement have
been, or will be prior to the Closing, duly authorized by all necessary
corporate action on the part of the Company. The Shares when so issued, sold and
delivered against payment therefor in accordance with the provisions of this
Agreement will be duly and validly issued, fully paid and non-assessable. No
consent, approval or authorization of, or designation, declaration or filing
with, any governmental authority or any other person or entity is required of
the Company in connection with the execution and delivery of the Financing
Documents, or the issuance, sale and delivery of the Shares in accordance with
the terms of this
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Agreement, or the consummation of any other transaction contemplated hereby or
by the other Financing Documents.
3.4. SEC Filings; Business. The Company's most recent Annual Report
on Form 10-K for the fiscal year ended December 31, 2001, as amended (the "2001
10-K"), and all other reports and amendments thereto filed by the Company
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act")
since the filing of the 2001 10-K and prior to the date hereof (collectively,
the "SEC Filings") are available from the SEC through XXXXX. The SEC Filings are
the only filings required of the Company pursuant to the 1934 Act for such
periods. At the time of filing thereof, the SEC Filings complied as to form in
all material respects with the requirements of the 1934 Act and did 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, as amended and in the
light of the circumstances under which they were made, not misleading. During
the preceding two years, except as set forth in the SEC Filings: Each
registration statement and any amendment thereto filed by the Company pursuant
to the 1933 Act and the rules and regulations thereunder, as of the date such
statement or amendment became effective, complied as to form in all material
respects with the 1933 Act and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and each prospectus
filed pursuant to Rule 424(b) under the 1933 Act, as of its issue date and as of
the closing of any sale of securities pursuant thereto did not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
The Company is engaged only in the business described in the SEC Filings and the
SEC Filings contain a complete and accurate description in all material respects
of the business of the Company, taken as a whole, as required to be disclosed.
3.5. Financial Statements. The financial statements included in
each SEC Filing present fairly, in all material respects, the consolidated
financial position of the Company as of the dates shown and its consolidated
results of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis (except as may be
disclosed therein or in the notes thereto, and, in the case of quarterly
financial statements, as permitted by Form 10-Q under the 1934 Act). Except as
set forth in the financial statements of the Company included in the SEC Filings
filed prior to the date hereof the Company has not incurred any liabilities,
contingent or otherwise, except those incurred in the ordinary course of
business, consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse
Effect.
3.6. No Directed Selling Efforts or General Solicitation. Neither
the Company nor any person or entity acting on its behalf has conducted any
general solicitation or general advertising (as those terms are used in
Regulation D) in connection with the offer or sale of any of the Shares.
3.7. Information Supplied to Purchaser. Neither this Agreement nor
any other Financing Documents furnished to the Purchaser by or on behalf of the
Company contains any untrue statement of a material fact, and none of this
Agreement, or such other Financing Documents omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
4. Representations of the Purchaser. The Purchaser represents and
warrants to the Company as follows:
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4.1. Validity. Assuming the due execution and delivery by the
Company of this Agreement and the Financing Documents, the Agreement and the
Financing Documents to which the Purchaser is a party constitute legal, valid
and binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with their respective terms.
4.2. Accredited Investor. The Purchaser is an "accredited investor"
as such term is defined in Regulation D under the 1933 Act.
4.3. Investment. The Shares to be received by the Purchaser
hereunder will be acquired for the Purchaser's own account, not as nominee or
agent, and not with a view to the resale or distribution of any part thereof in
violation of the 1933 Act, and the Purchaser has no intention of selling,
granting any participation in, or otherwise distributing the same in violation
of the 1933 Act.
4.4. Investment Experience. The Purchaser acknowledges that it can
bear the economic risk and complete loss of its investment in the Shares and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
4.5. Restricted Securities. The Purchaser understands that the
Shares are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances, and the certificate for the
Shares will bear a legend to that effect.
4.6. Access to Management. The Purchaser has had an opportunity to
receive additional information related to the Company requested by it and to ask
questions of and receive answers from the Company regarding the Company, its
business and the terms and conditions of the offering of the Shares. The
Purchaser acknowledges access to copies of the SEC Filings through XXXXX.
Neither such inquiries nor any other due diligence investigation conducted by
the Purchaser shall modify, amend or affect the Purchaser's right to rely on the
Company's representations and warranties contained in this Agreement.
4.7. No General Solicitation. The Purchaser did not learn of the
investment in the Shares as a result of any public advertising or general
solicitation.
5. Conditions.
5.1. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser under this Agreement are subject to the
fulfillment, or the waiver by the Purchaser, of the conditions set forth in this
Section 5.1 on or before the Closing Date. All such documents and actions shall
be satisfactory in form and substance to the Purchaser and its counsel.
(a) Accuracy of Representations and Warranties. Each
representation and warranty of the Company contained in this Agreement
shall be true on and as of the Closing Date, with the same effect as though
such representation and warranty had been made on and as of that date.
(b) Certificates and Documents. The Company shall have
delivered to counsel to the Purchaser a copy of the resolutions of the
Board authorizing and approving the Company's execution, delivery and
performance of the Financing Documents, all matters in connection with the
Financing Documents, and the transactions contemplated thereby.
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(c) Opinion. The Company shall have delivered to counsel to the
Purchaser an original opinion from Xxxxxx & Xxxxx, counsel to the Company,
dated as of the Closing Date, addressed to the Purchaser in such form as is
customary for transactions of this nature and reasonably acceptable to the
Purchaser and its counsel.
(d) Registration Rights. The Company shall have executed and
delivered to the Purchaser the Registration Rights Agreement in
substantially the form attached hereto as Exhibit A.
5.2. Conditions to the Obligations of the Company. The obligations of
the Company under this Agreement are subject to the fulfillment, or the waiver
in writing by the Company, of the conditions set forth in this Section 5.2 on or
before each Closing Date.
(a) Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser contained in Section 4
shall be true on and as of the Closing Date, with the same effect as though
such representations and warranties had been made on and as of that date.
(b) Performance. The Purchaser shall have performed and
complied with all agreements contained in this Agreement required to be
performed and complied with by it prior to or at the Closing.
5.3. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be delivered
by hand, by telecopier, by express overnight courier service or mailed by first
class mail, postage prepaid, to the respective addresses set forth on the
signature pages of this Agreement, as such addresses may be modified by notice
given pursuant to this Section 5.3, with copies provided simultaneously to
counsel as set forth on the signature pages of this Agreement. Notices provided
in accordance with this Section 5.3 shall be deemed delivered upon personal
delivery, receipt by telecopy or overnight mail, or 48 hours after deposit in
the mail in accordance with the above.
5.4. Entire Agreement. This Agreement, together with the instruments
and other documents hereby contemplated to be executed and delivered in
connection herewith, contains the entire agreement and understanding of the
parties hereto, and supersedes any prior agreements, negotiations or
understandings between or among them, with respect to the subject matter hereof.
Except as expressly set forth in this Agreement and the other written agreements
between the Company and the Purchaser, the Company makes no representation or
warranty, express or implied, with respect to the transactions contemplated by
this Agreement or such other agreements, the business of the Company, the
Company, the Company's assets or its future prospects (including any of the
foregoing with respect to Alliance Pharmaceuticals, Inc.). No party is relying
on any understandings, agreements or representations other than those expressly
contained in this Agreement or such other written agreements.
5.5. Amendments and Waivers. Except as otherwise expressly set forth
in this Agreement, any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the Purchaser. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
5.6. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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5.7. Captions. The captions of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
5.8. Severability. Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the fullest
lawful extent, but if any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be ineffective only to the extent so determined and such
invalidity or unenforceability shall not affect the remainder of such provision
or the remaining provisions of this Agreement.
5.9. Governing Law. This Agreement shall be governed by and
interpreted and construed in accordance with the laws of the Commonwealth of
Massachusetts; provided, however, that matters relating to the authorization,
issuance and enforceability of the terms of the Common Stock shall be governed
and interpreted and construed in accordance with the Nevada General Corporation
Law. The Company irrevocably submits to the exclusive jurisdiction of the state
and federal courts located in Boston, Massachusetts for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and
the transactions contemplated hereby. Service of process in connection with any
such suit, action or proceeding may be served on each party hereto anywhere in
the world by the same methods as are specified for the giving of notices under
this Agreement. The Company irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court. The Company irrevocably waives any objection to the laying of venue of
any such suit, action or proceeding brought in such courts and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
[Next Page is Signature Page.]
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IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase
Agreement as of the day and year first above written.
PHOTOGEN TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx, Ph.D., President
Notice Address: 000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
With a copy to: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxx
000 X. Xxxxxx, Xxx 0000
Xxxxxxx, XX 6060
PURCHASER
Investment Amount: $990,066.24 Name: Oxford Bioscience Partners IV L.P.
Signature: /s/ Xxxxxxxx Xxxxxxx
----------------------------------
Title: General Partner, OBP Management IV L.P.,
General Partner to Oxford Bioscience
Partners IV L.P.
Notice Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:________________, Esq.
________________________
________________________
________________________
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IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase
Agreement as of the day and year first above written.
PHOTOGEN TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxx, Ph.D., President
Notice Address: 000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
With a copy to: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxx
000 X. Xxxxxx, Xxx 0000
Xxxxxxx, XX 6060
PURCHASER
Investment Amount: $9,933.84 Name: MRNA Fund II L.P.
Signature: /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Title: General Partner, OBP Management IV L.P.,
General Partner to MRNA Fund II L.P.
Notice Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:__________________, Esq.
__________________________
__________________________
__________________________
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