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EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of July 22,
1999, by and among ENTREMED, INC., a corporation organized under the laws of
the State of Delaware (the "COMPANY"), and the purchasers (the "PURCHASERS")
set forth on the execution pages hereof (the "EXECUTION PAGES").
WHEREAS:
A. The Company and each 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 United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
B. Each Purchaser desires to purchase, severally and not jointly,
subject to the terms and conditions stated in this Agreement, (i) shares of the
Company's common stock, par value $.01 per share (the "COMMON STOCK"), (ii)
warrants in the form attached hereto as Exhibit A (including any warrants
issued in replacement thereof, the "SERIES 1 WARRANTS"), to acquire shares of
Common Stock and (iii) warrants in the form attached hereto as Exhibit B
(including any warrants issued in replacement thereof, the "SERIES 2 WARRANTS,"
and, together with the Series 1 Warrants, the "WARRANTS"), to acquire shares of
Common Stock. The shares of Common Stock issuable upon exercise of or
otherwise pursuant to the Warrants are referred to herein as the "WARRANT
SHARES."
C. Contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement in the form attached hereto as Exhibit C (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company has agreed to provide certain
registration rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as
follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"BUSINESS DAY" shall mean any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded as reported by NTMS (as defined below) is open for trading.
"CLOSING PRICE" shall mean for the Common Stock as of any date, the
closing bid price of such security on the principal United States securities
exchange or trading market on which such security is listed or traded as
reported by the Research Service of Nasdaq Trading and Market Services (or a
comparable reporting service of national reputation selected by the Purchasers
as provided in Section 8(o) hereof, and reasonably acceptable to the Company if
the Research
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Service of Nasdaq Trading and Market Services is not then reporting closing bid
prices of such security) (collectively, "NTMS"), or if the foregoing does not
apply, the last reported sale price of such security in the over-the-counter
market on the electronic bulletin board for such security as reported by NTMS,
or, if no sale price is reported for such security by NTMS, the average of the
bid prices of any market makers for such security as reported in the "pink
sheets" by the National Quotation Bureau, Inc., in each case for such date or,
if such date was not a Trading Day (as defined below) for such security, on the
next preceding day which was a Trading Day. If the Closing Price cannot be
calculated for a share of Common Stock as of either of such dates on any of the
foregoing bases, the Closing Price of such security on such date shall be the
fair market value as determined by an investment banking firm selected by the
Company and reasonably acceptable to the Purchasers, with the costs of such
appraisal to be borne by the Company.
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested in the
Company at the Closing pursuant to this Agreement by a Purchaser, as set forth
on the Execution Page hereto executed by such Purchaser.
"MARKET PRICE" shall mean, with respect to any date of determination,
the average Closing Price during the five (5) Trading Days ending on the
Trading Day immediately preceding such date of determination, appropriately
adjusted to reflect any stock dividend, stock split or similar transaction
during either such relevant period.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on
(i) the Securities, (ii) the ability of the Company to perform its obligations
hereunder (including the issuance of the Shares and the Warrants), under the
Warrants (including the issuance of the Warrant Shares) or under the
Registration Rights Agreement or (iii) the business, operations, properties,
prospects or financial condition of the Company and its subsidiaries, taken as
a whole.
"PRO RATA PERCENTAGE" shall mean, with respect to any Purchaser, a
percentage computed by dividing such Purchaser's Investment Amount by the
aggregate Investment Amounts of all Purchasers.
"SECURITIES" shall mean the Shares, the Warrants and the Warrant
Shares.
"SHARES" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers at the Closing.
"TRADING DAY" shall mean a Business Day on which at least 10,000
shares of Common Stock are traded on the principal United States securities
exchange or trading market on which such security is listed or traded as
reported by NTMS.
2. PURCHASE AND SALE OF SHARES AND WARRANTS.
a. Generally. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section
6 and Section 7 below, each Purchaser shall purchase the number of Shares and
Warrants determined as provided in this
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Section 2, and the Company shall issue and sell such number of Shares and
Warrants to each Purchaser for such Purchaser's Investment Amount as provided
below.
b. Number of Closing Shares and Warrants; Form of Payment;
Closing Date.
i. On the Closing Date (as defined below), the Company
shall sell and each Purchaser shall buy (A) the number of Shares as is equal
to the quotient of (I) such Purchaser's Investment Amount divided by (II) a
number of dollars equal to 92.5% of the Market Price as of the Closing Date,
(B) Series 1 Warrants exercisable for a number of shares of Common Stock equal
to 50% of the number of Shares referred to in subclause (A) above, and (C)
Series 2 Warrants exercisable for a number of shares of Common Stock equal to
50% of the number of Shares referred to in subclause (A) above. On the Closing
Date, each Purchaser shall pay the Company an amount equal to such Purchaser's
Investment Amount.
ii. On the Closing Date, each Purchaser shall pay its
Investment Amount in immediately available funds by wire transfer to the
Company, in accordance with the Company's written wiring instructions against
delivery of certificates representing the Shares and duly executed Warrants
being purchased by such Purchaser, and the Company shall deliver such Shares
and Warrants against delivery of the such Purchaser's Investment Amount.
iii. The date and time of the sale of the Shares and the
Warrants pursuant to this Agreement (the "CLOSING") shall be deemed to occur
when each of the conditions set forth in Section 6 and Section 7 below has been
satisfied or waived by the Company and all of the Purchasers, respectively, but
in no event shall the Closing occur later than 2:00 p.m. New York City time on
July 27, 1999 or such other date or time as First Security Xxx Xxxxxx ("FSVK")
and the Company may mutually agree ("CLOSING DATE"). The Closing shall occur
at the offices of Xxxxxx & Xxxxxx, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, or at such other place as FSVK and the Company may otherwise mutually
agree. The Company shall send written notice to each of the Purchasers
confirming that Closing has occurred. After the Closing but prior to the
filing of any registration statement pursuant to Section 2(a) of the
Registration Rights Agreement, (A) the Company may, in its sole discretion,
sell additional Securities on terms substantially identical to the terms set
forth in this Agreement (including the exhibits hereto) and (B) each purchaser
of such additional Securities shall execute joinders to this Agreement and to
the Registration Rights Agreement.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Each Purchaser severally and not jointly represents and warrants to
the Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the
Securities for the Purchaser's own account and not with a present view towards
the distribution thereof. The Purchaser understands that the Purchaser must
bear the economic risk of this investment indefinitely, unless the Securities
are registered pursuant to the Securities Act and any applicable state
securities or blue sky laws or an exemption from such registration is
available, and that the Company has no present intention of registering any
such Securities other than as contemplated by the Registration Rights
Agreement. Notwithstanding anything in this Section 3(a) to the
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contrary, by making the foregoing representation, the Purchaser does not agree
to hold 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 from registration under the
Securities Act and any applicable state securities laws.
b. Information. The Purchaser has been furnished all materials
relating to the business, finances and operations of the Company and its
subsidiaries and materials relating to the offer and sale of the Securities
which have been requested by the Purchaser. The Purchaser has been afforded
the opportunity to ask questions of the Company and has received what the
Purchaser believes to be satisfactory answers to any such inquiries. The
Purchaser understands that its investment in the Securities involves a high
degree of risk. Neither such inquiries nor any other due diligence
investigation conducted by the Purchaser or its counsel or any of its
representatives shall modify, amend or affect the Purchaser's right to rely on
the Company's representations and warranties contained in Section 4 below.
c. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
d. Authorization; Enforcement. The Purchaser has the requisite
power and authority to enter into and perform its obligations under this
Agreement and to purchase the Shares and the Warrants in accordance with the
terms hereof. This Agreement has been duly and validly authorized, executed
and delivered on behalf of the Purchaser and is a valid and binding agreement
of the Purchaser enforceable against the Purchaser in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
e. Transfer or Resale. The Purchaser understands that (i) except
as provided in the Registration Rights Agreement, the Securities have not been
and are not being registered under the Securities Act or any state securities
laws, and may not be transferred unless (a) subsequently registered thereunder,
or (b) the Purchaser shall have delivered to the Company an opinion of counsel
reasonably acceptable to the Company (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the
effect that the Securities to be sold or transferred may be sold or transferred
under an exemption from such registration, or (c) sold under Rule 144
promulgated under the Securities Act (or a successor rule), or (d) sold or
transferred to an affiliate of the Purchaser pursuant to an exemption under the
Securities Act; and (ii) neither the Company nor any other person is under any
obligation to register such Securities under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder, in each case, other than pursuant to the Registration Rights
Agreement.
f. Legends. The Purchaser understands that the Shares and the
Warrants and, until such time as the Shares and Warrant Shares have been
registered under the Securities Act as contemplated by the Registration Rights
Agreement or otherwise may be sold by the Purchaser under Rule 144, the
certificates for the Shares and Warrant Shares may bear a restrictive legend in
substantially the following form:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States. The
securities represented hereby may not be offered or sold in
the absence of an effective registration statement for the
securities under applicable securities laws unless offered,
sold or transferred under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of any Security upon
which it is stamped, if (a) the sale of such Security is registered under the
Securities Act or (b) in connection with the resale of such Security, such
holder provides the Company with an opinion of counsel, in form, substance and
scope customary for opinions of counsel in comparable transactions, to the
effect that a public sale or transfer of such Security may be made without
registration under the Securities Act or (c) such holder provides the Company
with reasonable assurances that such Security can be sold under Rule 144(k).
The Purchaser agrees to sell all Securities, including those represented by a
certificate(s) from which the legend has been removed, pursuant to an effective
registration statement or under an exemption from the registration requirements
of the Securities Act. The legend shall be removed when such Security is sold
pursuant to an effective registration statement or may be sold by a Purchaser
who is not an "affiliate" of the Company under Rule 144(k).
g. Accredited Investor Status. The Purchaser is an "ACCREDITED
INVESTOR" as that term is defined in Rule 501(a) of Regulation D. Neither the
Purchaser nor any of its affiliates is registered as a broker or dealer under
Section 15(a) of the Securities Exchange Act of 1934, as amended, or a member
of the NASD (as defined below).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. The Company is a corporation
duly organized and existing under the laws of the jurisdiction in which it is
incorporated, and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary and where the failure so to qualify would have a
Material Adverse Effect. Schedule 4(a) sets forth the Company's jurisdiction of
incorporation and the name of each of the Company's subsidiaries and its
jurisdiction of incorporation. The Company does not have any subsidiaries
whose operations are material to the Company on a consolidated basis.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, the Warrants and the Registration Rights Agreement, to issue
and sell the Shares and the Warrants in accordance with the terms hereof and to
issue the Warrant Shares upon exercise of the Warrants in
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accordance with the terms of the Warrants; (ii) the execution, delivery and
performance of this Agreement, the Warrants and the Registration Rights
Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the reservation
for issuance and issuance of the Shares and the issuance of the Warrants and
the reservation for issuance and issuance of the Warrant Shares) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors or, except as set forth in
Schedule 4(b), its shareholders is required; (iii) this Agreement has been duly
executed and delivered by the Company; and (iv) this Agreement constitutes,
and, upon execution and delivery by the Company and the other parties thereto
to the extent required of the Registration Rights Agreement and the Warrants,
such agreements will constitute, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
c. Capitalization. The capitalization of the Company and each of
its subsidiaries as of the date hereof is set forth on Schedule 4(c), including
the 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 exercisable for, or convertible into or exchangeable for
any shares of capital stock. All of such outstanding shares of the Company's
capital stock have been, or upon issuance will be, validly issued, fully paid
and nonassessable. Except as set forth on Schedule 4(c), no shares of capital
stock of the Company (including the Shares and the Warrant Shares) or any of
the subsidiaries are subject to preemptive rights or any other similar rights
of the shareholders of the Company or any liens or encumbrances. Except for
the Securities and as disclosed in Schedule 4(c), as of the date of this
Agreement, (i) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever to which the
Company or any of the subsidiaries is a party relating to the issuance by the
Company or any of its subsidiaries of 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 such subsidiaries, and (ii) there are no agreements or
arrangements under which the Company or any of its subsidiaries is obligated to
register the sale of any of its or their securities under the Securities Act
(except the Registration Rights Agreement). The Company has made available to
each Purchaser true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof ("CERTIFICATE OF INCORPORATION"),
the Company's By-laws as in effect on the date hereof (the "BY-LAWS") and all
other instruments and agreements governing securities convertible into or
exercisable or exchangeable for capital stock of the Company, except for stock
options granted under any employee benefit plan or director stock option plan
of the Company.
d. Issuance of Shares. The Shares are duly authorized and when
issued and paid for in accordance with the terms hereof, will be validly
issued, fully paid and non-assessable, and free from all taxes, liens, claims
and encumbrances (other than those imposed through acts or omissions of the
Purchaser thereof), and will not be subject to preemptive rights or other
similar rights of shareholders of the Company and will not impose personal
liability upon the holder
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thereof. The Warrant Shares are duly authorized and reserved for issuance,
and, upon exercise of the Warrants in accordance with the terms thereof, will
be validly issued, fully paid and non-assessable and free from all taxes and
liens, claims and encumbrances (other than those imposed through acts or
omissions of the Purchaser thereof), and will not be subject to preemptive
rights or other similar rights of shareholders of the Company and will not
impose personal liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company,
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance and
issuance of the Shares and the Warrant Shares and the issuance of the Warrants)
will not (i) conflict with or result in a violation of the Certificate of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which, 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 of any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including (assuming the accuracy of the
representations and warranties of the Purchasers) the United States federal and
state securities laws and regulations) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected (except, with respect to clause (ii), for
such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect). Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation, By-laws and
other organizational documents and neither the Company nor any of its
subsidiaries is in default (and no event has occurred which, with notice or
lapse of time or both, would put the Company or any of its subsidiaries in
default) under, nor has there occurred any event giving others (with notice or
lapse of time or both) any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, except for actual or possible violations,
defaults or rights as would not, individually or in the aggregate, have a
Material Adverse Effect. The businesses of the Company and its subsidiaries
are not being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for actual or possible violations, if any, the
sanctions for which either singly or in the aggregate would not have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws, the
Company is not required to obtain any consent, approval, authorization or order
of, or make any filing or registration with, any court or governmental agency
or any regulatory or self regulatory agency in order for it to execute, deliver
or perform any of its obligations under this Agreement including without
limitation the issuance and sale of the Shares and Warrants as provided
hereby), the Warrants (including without limitation the issuance of the Warrant
Shares) or the Registration Rights Agreement, in each case in accordance with
the terms hereof or thereof. The Company is not in violation of the listing
requirements of the Nasdaq National Market ("NASDAQ") and does not reasonably
anticipate that the Common Stock will be delisted by NASDAQ in the foreseeable
future based on its rules (and interpretations thereof) as currently in effect.
f. SEC Documents; Financial Statements. Since January 1, 1999,
the Company has timely filed all reports, schedules, forms, statements and
other documents required to be filed by
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it with the SEC pursuant to the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and has filed all registration statements and other
documents required to be filed by it with the SEC pursuant to the Securities
Act (all of the foregoing filed prior to the date hereof, and all exhibits
included therein and financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to herein as the
"SEC DOCUMENTS"). The Company has made available to each Purchaser true and
complete copies of the SEC Documents, except for the exhibits and schedules
thereto and the documents incorporated therein. As of their respective dates,
the SEC Documents complied in all material respects with the requirements of
the Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Any statements made in any such SEC Documents that are or were
required to be updated or amended under applicable law have been so updated or
amended. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
applicable with respect thereto. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles,
consistently applied, 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 not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and its
subsidiaries as of the dates thereof and the results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments). Except as set
forth in the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of such SEC Documents and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
such SEC Documents, which liabilities and obligations referred to in clauses
(i) and (ii), individually or in the aggregate, would not have a Material
Adverse Effect.
g. Absence of Certain Changes. Except as disclosed in the SEC
Documents, since December 31, 1998, there has been no change or development
which individually or in the aggregate has had or could have a Material Adverse
Effect.
h. Absence of Litigation. Except as disclosed in the SEC
Documents, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company, or any of its subsidiaries, or any of their
directors or officers in their capacities as such which would have a Material
Adverse Effect.
i. Intellectual Property. The Company and each of its
subsidiaries owns or is licensed to use all patents, patent applications,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, permits, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems
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or procedures) and other similar rights and proprietary knowledge
(collectively, "INTANGIBLES") necessary for the conduct of its business as now
being conducted and as proposed to be conducted. Neither the Company nor any
of its subsidiaries has received written notice that it is infringing upon
third party Intangibles. Neither the Company nor any of its subsidiaries has
entered into any consent, indemnification, forbearance to xxx or settlement
agreements with respect to the validity of the Company's or such subsidiary's
ownership or right to use its Intangibles. The Intangibles are valid and
enforceable in all material respects, and no material registration relating
thereto has lapsed, expired or been abandoned or canceled or is the subject of
cancellation or other adversarial proceedings, and all material applications
therefor are pending and in good standing. The Company has complied, in all
material respects, with its contractual obligations relating to the protection
of the Intangibles used pursuant to licenses. To the Company's knowledge, no
person is infringing on or violating the Intangibles owned or used by the
Company, which infringement or violation, individually or in the aggregate,
would have a Material Adverse Effect.
j. Environment. Except as disclosed in the SEC Documents (i)
there is no environmental liability, nor factors likely to give rise to any
environmental liability, affecting any of the properties of the Company or any
of its subsidiaries that, individually or in the aggregate, would have a
Material Adverse Effect and (ii) neither the Company nor any of the
subsidiaries has violated any environmental law applicable to it now or
previously in effect, other than such violations or infringements that,
individually or in the aggregate, have not had and will not have a Material
Adverse Effect.
k. Title. The Company and each of its subsidiaries has good
title in fee simple to all real property and good title to all personal
property (other than Intangibles, which are addressed in Section 4(i) above)
owned by it which is material to its business, free and clear of all liens,
encumbrances and defects except for such defects in title that, individually or
in the aggregate, could not have a Material Adverse Effect. Any real property
and facilities held under lease by the Company or any of its subsidiaries are
held by the Company or such subsidiary under valid, subsisting and enforceable
leases with such exceptions which have not had and will not have a Material
Adverse Effect.
l. Insurance. The Company and its subsidiaries maintain such
insurance relating to their business, operations, assets, key-employees and
officers and directors as is appropriate to their business, assets and
operations, in such amounts and against such risks as are customarily carried
and insured against by owners of comparable businesses, assets and operations,
and such insurance coverages will be continued in full force and effect to and
including the Closing Date other than those insurance coverages in respect of
which the failure to continue in full force and effect could not reasonably be
expected to have a Material Adverse Effect.
m. Acknowledgment Regarding the Purchasers' Purchase of the
Securities. The Company acknowledges and agrees that no Purchaser is acting as
a financial advisor or, other than Xxxxxxx X. Xxxxxx, is acting as a fiduciary
of the Company (or in any similar capacity) with respect to this Agreement or
the transactions contemplated hereby, and the relationship between the Company
and the Purchasers is "arms length" and that any statement made by any
Purchaser or any of its representatives or agents in connection with this
Agreement and the transactions contemplated hereby is not advice or a
recommendation and is merely incidental to such
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Purchaser's purchase of Securities and has not been relied upon by the Company,
its officers or directors in any way. The Company further represents to the
Purchaser that the Company's decision to enter into this Agreement has been
based solely on an independent evaluation by the Company and its
representatives.
n. No Brokers. The Company has not engaged any person to which
or to whom brokerage commissions, finder's fees, financial advisory fees or
similar payments are or will become due in connection with this Agreement or
the transactions contemplated hereby except for FSVK, DM Management, LLC and
Xxxxx Xxxxxxxxx, whose commissions and fees will be paid by the Company.
o. Tax Status. The Company and each of its subsidiaries has made
or filed all material federal, state and local income and all other tax
returns, reports and declarations required by any jurisdiction to which it is
subject (unless and only to the extent that the Company or the applicable
subsidiary has set aside on its books provisions adequate for the payment of
all unpaid and unreported taxes) and has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and has set aside on its books provisions adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no material unpaid taxes claimed to
be due by the taxing authority of any jurisdiction. The Company has not
executed a waiver with respect to any statute of limitations relating to the
assessment or collection of any federal, state or local tax.
p. No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such
terms are used in Regulation D, with respect to any of the Securities being
offered hereby.
q. Non-Public Information. Certain Purchasers have executed a
Confidential Non-Disclosure Agreement (the "NDA") with the Company, which
prohibits such Purchasers from trading in the securities of the Company if they
are in possession of material, non-public information regarding the Company.
The Company hereby acknowledges that pursuant to the Registration Rights
Agreement it is obligated to file a registration statement under which such
Purchasers could sell the Securities purchased hereunder and the Company hereby
agrees that such Purchasers shall not be in violation of, or have liability
under, the NDA in connection with sales under such registration statement made
in accordance with the Registration Rights Agreement.
r. 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 require registration of the
Securities being offered hereby under the Securities Act or cause this offering
of Securities to be integrated with any prior offering of securities of the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, Rule 4460(i) of the
National Association of Securities Dealers ("NASD") or any similar rule.
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s. Year 2000. To the Company's knowledge and except for matters
that will not have a Material Adverse Effect: (i) all hardware and software
products used by the Company and its subsidiaries in the administration and the
business operations of the Company and such subsidiaries will be able to
process date data (including, but not limited to, calculating, comparing and
sequencing) in a consistent manner from, into and between the twentieth century
(through 1999), the year 2000 and the twenty-first century, including leap year
calculations, when used in accordance with the product documentation
accompanying such hardware and software products; (ii) all software developed
and sold by the Company and any of its subsidiaries (other than third party
software) will be able to process date data (including, but not limited to,
calculating, comparing and sequencing) in a consistent manner from, into and
between the twentieth century (through 1999), the year 2000 and the
twenty-first century, including leap year calculations, when used in accordance
with the product documentation accompanying such software.
t. Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the Securities Act. There exist no facts or circumstances (including
without limitation any required approvals or waivers of any circumstances that
may delay or prevent the obtaining of accountant's consents) that would
prohibit or delay the preparation and filing of a registration statement on
Form S-3 with respect to the Registrable Securities (as defined in the
Registration Rights Agreement).
u. No Misrepresentations. No representation, warranty,
acknowledgement or certification of the Company contained in this Agreement,
any schedule, annex or exhibit hereto or any certificate furnished by the
Company to the Purchasers pursuant to this Agreement, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
5. COVENANTS.
a. Satisfaction of Conditions. The parties shall use reasonable
best efforts to satisfy in a timely manner each of the conditions set forth in
Section 6 and Section 7 of this Agreement.
b. Form D; Blue Sky Laws. 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 after such filing. The Company shall,
on or before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchasers
pursuant to this Agreement under applicable securities or "blue sky" laws of
the states of the United States or obtain exemption therefrom, and shall
provide evidence of any such action so taken to each Purchaser on or prior to
the Closing Date.
c. Reporting Status. So long as a Purchaser beneficially owns
any Securities or has the right to acquire any Securities pursuant to this
Agreement, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act, and shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would permit such termination.
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d. Use of Proceeds. The Company shall use the net proceeds from
the sale of the Shares and the Warrants for the purposes set forth on Schedule
5(d), but in no event shall the Company use such net proceeds to repurchase any
outstanding securities of the Company.
e. Expenses. At the Closing, the Company shall reimburse FSVK
for the out-of-pocket expenses reasonably incurred by FSVK and its affiliates
and advisors in connection with the negotiation, preparation, execution and
delivery of this Agreement, the Registration Rights Agreement, the Warrants and
the other agreements to be executed in connection herewith, including, without
limitation, in conducting FSVK's and its affiliates' and advisors' reasonable
due diligence and FSVK's and its affiliates' reasonable attorneys' fees and
expenses (the "EXPENSES"). Notwithstanding the foregoing, the Company shall not
be obligated to reimburse FSVK for more than $40,000.00 of Expenses pursuant to
this Section 5(e).
f. Financial Information. For a period of two (2) years
following the Closing, the Company agrees to send to each Purchaser within ten
days after the filing with the SEC, to the extent not available through the
SEC's XXXXX system, a copy of its Annual Report on Form 10-K, its Quarterly
Reports on Form 10-Q, its proxy and information statements and any Current
Reports on Form 8-K.
g. Reservation of Shares. The Company has and shall at all times
have authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the issuance of the Shares as provided in
Section 2 hereof, and the full exercise of the Warrants and the issuance of the
Warrant Shares in connection therewith and as otherwise required hereby and by
the Warrants. The Company shall not reduce the number of shares of Common
Stock reserved for issuance under this Agreement (except as a result of the
issuance of the Shares hereunder), the Warrants (except as a result of the
issuance of the Warrant Shares upon the exercise of the Warrants) or the
Registration Rights Agreement, without the consent of the Purchasers, such
consent not to be unreasonably withheld, conditioned or delayed.
h. Listing. On the Closing Date, the Company shall have applied
for the listing of the Shares and Warrant Shares, in each case, upon each
national securities exchange or automated quotation system, if any, upon which
shares of Common Stock are then listed or quoted and shall maintain, so long as
any other shares of Common Stock shall be so listed, such listing of all Shares
from time to time issuable hereunder and all Warrant Shares from time to time
issuable upon exercise of the Warrants. The Company shall use all commercially
reasonable efforts to continue the listing and trading of its Common Stock on
NASDAQ, the New York Stock Exchange ("NYSE") or the American Stock Exchange
("AMEX") and will comply in all respects with the Company's reporting, filing
and other obligations under the bylaws or rules of NASDAQ and the NASD or any
other exchanges, as applicable.
i. Additional Equity Capital. The Company agrees that during
the period beginning on the date hereof and ending on the date which is 90 days
following the Closing Date (the "LOCK-UP PERIOD"), the Company will not,
without the prior written consent of the Purchasers or their designees, such
consent not to be unreasonably withheld, conditioned or delayed, contract with
any party to obtain additional financing in which any equity or equity-linked
securities are issued (including any debt financing with an equity component)
(an "EQUITY FINANCING") pursuant to any offering exempt from the registration
requirements of the Securities
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Act which grants any registration rights exercisable within six months of the
Closing Date; provided, it being understood that any additional Securities sold
to any subsequent purchaser pursuant to Section 2(b)(iii) hereof shall not be
deemed to be a violation of this Section 5(i). The limitations referred to in
this Section 5(i) shall not apply to (i) any transaction involving issuances of
securities as consideration in a merger, consolidation or acquisition of
assets, or in connection with any strategic partnership, collaboration or joint
venture (the primary purpose of which is not to raise equity capital), or as
consideration for the acquisition of a business, product or license by the
Company, (ii) the issuance of securities pursuant to an underwritten public
offering, (iii) the issuance of securities upon exercise or conversion of the
Company's options, warrants or other convertible securities outstanding as of
the date hereof as set forth in Schedule 4(c) or (iv) the grant of additional
options or warrants, or the issuance of additional securities, under any duly
authorized Company stock option, stock purchase or restricted stock plan for
the benefit of the Company's employees, consultants or directors.
j. No Integrated Offerings. The Company shall not make any
offers or sales of any security (other than the Securities) under circumstances
that would require registration of the Securities being offered or sold
hereunder under the Securities Act or cause this offering of Securities to be
integrated with any other offering of securities by the Company for any
purposes, including for purposes of any stockholder approval provision
applicable to the Company or its securities.
k. Certain Trading Restrictions. So long as the Company is in
compliance in all material respects with its obligations to the Purchasers
pursuant to this Agreement, the Registration Rights Agreement and the Warrants,
each Purchaser agrees that it and its affiliates shall: (i) limit its trading
in Common Stock on any Business Day to the greater of fifteen percent (15%) of
(a) the average trading volume of Common Stock on the principal United States
securities exchange or trading market on which such security is listed or
traded, as reported by NTMS for the twenty (20) consecutive Trading Days ending
on the Trading Day immediately preceding the Business Day for which the
determination is being made or (b) the actual trading volume of Common Stock on
the principal United States securities exchange or trading market on which such
security is listed or traded as reported by NTMS on the Business Day for which
such determination is being made; and (ii) not engage in any trading of Common
Stock during the twenty (20) minutes preceding the normal daytime closing time
of the principal United States securities exchange or trading market on which
the Common Stock is listed or traded. During the period beginning thirty (30)
days prior to the date of this Agreement and ending on the Closing Date, each
Purchaser agrees that it and its affiliates has not engaged and shall not
engage, directly or indirectly, in any trading of Common Stock, including but
not limited to short sales or hedging of any kind in anticipation of this
Agreement or the Closing of the transactions contemplated hereby.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Shares and
Warrants to a Purchaser at the Closing hereunder is subject to the
satisfaction, at or before the Closing Date, of each of the following
conditions thereto; provided, however, that these conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion.
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a. The applicable Purchaser shall have executed the signature
page to this Agreement and the Registration Rights Agreement, and delivered the
same to the Company.
b. The applicable Purchaser shall have delivered such Purchaser's
Investment Amount in accordance with Section 2(b) above.
c. The representations and warranties of the applicable Purchaser
shall be true and correct as of the date when made and as of the Closing Date
as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties shall be true
and correct as of such date), and the applicable Purchaser shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the applicable Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental
authority of competent jurisdiction or any self-regulatory organization, or the
staff of any thereof, having authority over the matters contemplated hereby
which questions the validity of, or challenges or prohibits the consummation
of, any of the transactions contemplated by this Agreement.
e. The aggregate Investment Amounts of the Purchasers hereunder
shall equal or exceed twenty million dollars ($20,000,000.00).
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND
WARRANTS.
The obligation of each Purchaser hereunder to purchase Shares and
Warrants to be purchased by it hereunder is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for such Purchaser's sole benefit and may be waived by
such Purchaser at any time in such Purchaser's sole discretion:
a. The Company shall have executed the signature pages to this
Agreement and the Registration Rights Agreement, and delivered the same to the
Purchaser.
b. The Company shall have delivered to the Purchaser duly
executed certificates representing the number of Shares and duly executed
Warrants as provided in Section 2(b) above.
c. The Shares shall be authorized for quotation on NASDAQ and
trading in the Common Stock (or on NASDAQ generally) shall not have been
suspended or be under threat of suspension by the SEC or NASDAQ.
d. The representations and warranties of the Company shall be
true and correct as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date, which representations and warranties shall be true and correct
as of such date) and the Company shall have performed,
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satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date. The Purchaser shall have
received a certificate, executed on behalf of the Company by its Chief Financial
Officer, dated as of the Closing Date, to the foregoing effect and attaching
true and correct copies of the resolutions adopted by the Company's Board of
Directors authorizing the execution, delivery and performance by the Company of
its obligations under this Agreement, the Warrants and the Registration Rights
Agreement.
e. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental
authority of competent jurisdiction or any self-regulatory organization, or the
staff of any thereof, having authority over the matters contemplated hereby
which questions the validity of, or challenges or prohibits the consummation
of, any of the transactions contemplated by this Agreement.
f. The Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, relating to the matters set forth in
Exhibit D attached hereto.
g. From the date of this Agreement through the Closing Date,
there shall not have occurred any Material Adverse Effect.
h. The Company shall have provided advance notice to the NASD of
the issuance of the Shares.
i. The Company shall have updated Schedule 4(c) to set forth the
number of Shares to be issued pursuant to the terms hereof and the number of
Warrant Shares to be issued upon the exercise of the Warrants.
j. The aggregate Investment Amounts of the Purchasers hereunder
shall equal or exceed fifteen million dollars ($15,000,000.00).
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed in the State of New York.
Each of the parties irrevocably consents to the jurisdiction of the United
States federal courts and the state courts located in the State of New York in
any suit or proceeding based on or arising under this Agreement and irrevocably
agrees that all claims in respect of such suit or proceeding may be determined
in such courts. Each of the parties, irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. Each of the
parties further agrees that service of process upon such party mailed by first
class mail to the address set forth in Section 8(f) shall be deemed in every
respect effective service of process upon such party in any such suit or
proceeding. Nothing herein shall affect the right of any Purchaser to serve
process in any other manner permitted by law. Each of the parties, agrees that
a final non-appealable judgment in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on such judgment
or in any other lawful manner.
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b. Counterparts. This Agreement may be executed in two or more
counterparts, all of which 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. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution
Page(s) hereof to be physically delivered to the other party within five (5)
days of the execution hereof.
c. Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the
Purchasers make any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or
amended other than by an instrument in writing signed by the Company and, by
the Purchasers as provided in Section 8(n) hereof. Any waiver by the
Purchasers, on the one hand, or the Company, on the other hand, of a breach of
any provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision of or any breach of any other
provision of this Agreement. The failure of the Purchasers, on the one hand,
or the Company, on the other hand to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
f. Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by
confirmed telecopy, and shall be effective five days after being placed in the
mail, if mailed, or upon receipt or refusal of receipt, if delivered personally
or by courier or confirmed telecopy, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
EntreMed, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, PhD.
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Chairman, President and Chief Executive Officer
With a copy to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxx, Esq.
If to the Purchaser, to the address set forth under the Purchaser's name on the
Execution Page hereto executed by such Purchaser, with a copy to:
First Security Xxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
Senior Vice President
Each party hereto may from time to time change its address or
facsimile number for notices under this Section 8 by giving at least ten (10)
days' prior written notice of such changed address or facsimile number, in the
case of the Purchasers to the Company, and in the case of the Company to all of
the Purchasers.
g. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers, such consent not to be
unreasonably withheld, conditioned or delayed. No Purchaser shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company, such consent not to be unreasonably withheld,
conditioned or delayed, except to an affiliate of such Purchaser, and provided
further, that any such assignee shall agree in writing with the Company to be
bound by the terms and conditions hereof and of the Registration Rights
Agreement.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be
enforced by any other person.
i. Survival. The representations and warranties of the Company
and the agreements and covenants set forth in Sections 4, 5 and 8 shall survive
for three (3) years following the Closing Date, notwithstanding any due
diligence investigation conducted by or on behalf of the Purchasers. Moreover,
none of the representations and warranties made by the Company herein shall act
as a waiver of any rights or remedies a Purchaser may have under applicable
federal or state securities laws. The Company agrees to indemnify and hold
harmless each Purchaser and
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each of such Purchaser's officers, directors, employees, partners, members,
agents and affiliates for loss or damage relating to the Securities purchased
hereunder arising as a result of or related to any breach by the Company of any
of its representations or covenants set forth herein, including advancement of
expenses as they are incurred.
j. Publicity. The Company shall have the right to approve the
issuance of any press releases or any other public statements with respect to
the transactions contemplated hereby. Within five days after the Closing Date,
the Company shall file a Current Report on Form 8-K or other appropriate form
with the SEC disclosing the transactions contemplated hereby. Nothing
contained in this Section 8(j) shall prevent the Company from satisfying its
disclosure obligations under the federal or state securities laws or pursuant
to any rule of any trading market that is a principal trading market for any of
the Company's securities.
k. Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. Termination. In the event that the Closing shall not have
occurred on or before July 27, 1999, or such other date as the Company and FSVK
may mutually agree, this Agreement shall terminate at the close of business on
such date. Notwithstanding any termination of this Agreement, any party not in
breach of this Agreement shall preserve all rights and remedies it may have
against another party hereto for a breach of this Agreement prior to or
relating to the termination hereof.
m. Equitable Relief. Each party acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the other parties
by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach
or threatened breach by such party of the provisions of this Agreement, that
the other parties shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate
issuance and transfer, without the necessity of showing economic loss and
without any bond or other security being required; provided that the Company
shall only be entitled to seek equitable relief with respect to breaches of the
Purchaser's obligations under Section 5(k) of this Agreement.
n. Determinations. Except as otherwise expressly provided
herein, (i) prior to the Closing Date, for any consent, approval or waiver by a
Purchaser or other determination to be made by a Purchaser hereunder to be
binding upon such Purchaser, or any agreement by a Purchaser to amend any of
the provisions of this Agreement, such consent, approval, waiver, determination
or amendment shall have been made or agreed to by all of the Purchasers, and
(ii) after the Closing Date, for any consent, approval or waiver by a Purchaser
or other determination to be made by a Purchaser hereunder to be binding upon
such Purchaser, or any agreement by a Purchaser to amend any of the provisions
of this Agreement, such consent, approval, waiver, determination or amendment
shall have been made or agreed to by Purchasers (excluding Purchasers who are
affiliates of the Company) that have invested not less than fifty-
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one percent (51%) of the aggregate Investment Amounts invested by all
Purchasers (excluding Purchasers who are affiliates of the Company).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
ENTREMED, INC.
By:
--------------------------------
Name: Xxxx X. Xxxxxxx, Ph.D.
Title: Chairman of the Board and
Chief Executive Officer
THE PURCHASER:
[ ]
----------------------------
By:
----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Investment Amount:$
------------------------
Residence:
---------------------------------
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Address:
-----------------------------------
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Telephone No.: ( )
--------------------
Telecopy No.: ( )
--------------------
Attention:
---------------------------------
with copies of all notices to:
-------------------------------------------
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Telephone No.: ( )
--------------------
Telecopy No.: ( )
--------------------
Attention:
---------------------------------
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