EXHIBIT 10.1
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Between
CYTOGEN CORPORATION,
SOUTHBROOK INTERNATIONAL INVESTMENTS,
LTD.,
XXXXXXXX INVESTMENTS, L.P.,
MONTROSE INVESTMENTS, L.P.,
HERACLES FUND,
THEMIS PARTNERS, X.X.
XXXXX XXXXXXX STRATEGIC GROWTH FUND, L.P.
and
XXXXX XXXXXXX STRATEGIC GROWTH FUND, LTD.
Dated as of December 9, 1997
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this
"Agreement"), dated as of December 9, 1997, between Cytogen
Corporation, a Delaware corporation (the "Company") and
Southbrook International Investments, Ltd., a corporation
organized and existing under the laws of the British Virgin
Islands ("Southbrook"), Xxxxxxxx Investments L.P., a Delaware
limited partnership ("Xxxxxxxx"), Montrose Investments L.P., a
Cayman Islands exempt limited partnership ("Montrose"), Heracles
Fund, a Cayman Islands exempt company ("Heracles"), Themis
Partners, L.P., a Delaware limited partnership ("Themis"), Xxxxx
Xxxxxxx Strategic Growth Fund, L.P., a New York limited
partnership ("Xxxxx Xxxxxxx XX") and Xxxxx Xxxxxxx Strategic
Growth Fund, Ltd., a Cayman Islands exempt company ("Xxxxx
Xxxxxxx Limited"). Southbrook, Westover, Montrose, Heracles,
Themis and Xxxxx Xxxxxxx XX and Xxxxx Xxxxxxx Limited are each
referred to herein as a "Purchaser" and are collectively referred
to herein as the "Purchasers."
WHEREAS, subject to the terms and conditions set forth in
this Agreement, the Company desires to issue and sell to the
Purchasers, and the Purchasers desire to acquire from the
Company, shares of the Company's 6% Series B Convertible
Preferred Stock, par value $.01 per share (the "Series B
Preferred"), the Company's 6% Series C Convertible Preferred
Stock, par value $.01 per share (the "Series C Preferred") and
the Company's 6% Series D Convertible Preferred Stock, par value
$.01 per share (the "Series D Preferred" and together with the
Series B Preferred and the Series C Preferred, the "Preferred
Stock").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and each Purchaser agree as follows:
ARTICLE I
PURCHASE AND SALE OF PREFERRED SHARES
1.1 Purchase and Sale. (a) Subject to the terms and
conditions set forth herein, the Company shall issue and sell to
the Purchasers, and the Purchasers, severally and not jointly,
shall purchase from the Company: (i) 750 shares of Series B
Preferred (the "Series B Shares"); (ii) up to 1,250 shares of
Series C Preferred (the "Series C Shares"); and (iii) up to 1,250
shares of Series D Preferred (the "Series D Shares" and together
with the Series B Shares and the Series C Shares, the "Shares").
Notwithstanding anything to the contrary set forth in this
Agreement, the aggregate number of Shares to be sold hereunder
shall not exceed 2,000 (the "Maximum Share Amount").
(b) The Series B Preferred shall have the respective
rights, preferences and privileges set forth in Exhibit A
attached hereto (the "Series B Terms"), which shall be
incorporated into a Certificate of Designation to be approved by
the Purchasers and filed on or prior to the Series B Closing (as
defined below) by the Company with the Secretary of State of
Delaware (the "Series B Designation"). The Series C Preferred
and Series D Preferred shall have respective rights, preferences
and privileges identical to the Series B Terms, mutatis mutandis,
and shall rank pari passu with the Series B Preferred with regard
to dividends, liquidation, voting rights and any other
preferential rights designated therein, except that the
Conversion Price (as defined below) for conversion
of the Series C Shares and Series D Shares shall be determined as
of the Original Issue Date (as defined below) for such Series C
and Series D Shares.
The Series C Preferred and Series D Preferred shall be
authorized pursuant to certificates of designation prepared by
the Company, subject to the approval of the Purchasers, and filed
at or prior to the Series C Closing Date (as defined below) and
Series D Closing Date (as defined below), as applicable, by the
Company with the Secretary of State of Delaware (such
certificates of designation, together with the Series B
Designation, are referred to as the "Certificates of
Designation").
For purposes of this Agreement, "Conversion Price,"
"Original Issue Date," "Conversion Date" "Trading Day" and "Per
Share Market Value" shall have the meanings set forth in Exhibit
A; and "Market Price" as at any date shall mean the average Per
Share Market Value for the five (5) Trading Days immediately
preceding such date.
1.2 Purchase Price. The purchase price per Share shall be
$10,000.
1.3 The Closings.
(a) The Series B Closing. (i) The closing of the
purchase and sale of the Series B Shares (the "Series B Closing")
shall take place at the offices of Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx LLP ("Xxxxxxxx Xxxxxxxxx"), 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, immediately following the
execution hereof or such later date as the parties shall agree,
but not prior to the date that the conditions set forth in
Section 4.1 have been satisfied or waived by the appropriate
party. The date of the Series B Closing is hereinafter referred
to as the "Series B Closing Date." At the Series B Closing, the
Company shall sell and issue to the Purchasers, and the
Purchasers shall, severally and not jointly, purchase from the
Company, 750 Series B Shares for an aggregate purchase price of
$7,500,000 (the "Series B Purchase Price").
(ii) At the Series B Closing, (a) the Company
shall deliver to each Purchaser one or more stock certificates
representing the Series B Shares purchased by such Purchaser as
set forth next to such Purchaser's name on Schedule 1 attached
hereto, each registered in the name of such Purchaser, and all
other documents, instruments and writings required to have been
delivered at or prior to the Series B Closing by the Company
pursuant to this Agreement and the Registration Rights Agreement,
dated the date hereof, by and between the Company and the
Purchasers, in the form of Exhibit B (the "Registration Rights
Agreement"), and (b) each Purchaser shall deliver to the Company
the portion of the Series B Purchase Price set forth next to its
name on Schedule 1, in United States dollars in immediately
available funds by wire transfer to an account designated in
writing by the Company for such purpose prior to the Series B
Closing Date, and all documents, instruments and writings
required to have been delivered at or prior to the
Series B Closing by such Purchaser pursuant to this Agreement and
the Registration Rights Agreement.
(b) The Series C Closing. (i) Subject to the terms
and conditions set forth in this Agreement, the Company shall, if
the average Per Share Market Value for the thirty Trading Days
prior to the date of the Series C Subsequent Financing Notice is
greater than $2.00, have the right to deliver a written notice to
the Purchasers (a "Series C Subsequent Financing Notice")
requiring the Purchasers to purchase Series C Shares. The
Company may deliver a Series C Subsequent Financing Notice no
earlier than 90 days after the effective date of the Underlying
Shares Registration Statement relating to the securities issued
at the Series B Closing Date and no later than 270 days after the
effective date of such Registration Statement (such 270th day,
the "Series C Closing Expiration Date") and such Series C
Subsequent Financing Notice shall set forth the dollar amount of
Series C Shares that the Company intends to sell to the
Purchasers, provided, however, that the minimum amount of such
sale and purchase shall be $1,500,000 and the maximum amount of
such sale and purchase shall be based upon the average Per Share
Market Value for the thirty Trading Days prior to the date of the
Series C Closing as follows: if such average price is greater
than $2.00 but less than $2.50 then the maximum funding shall be
$4,000,000; if such average price is equal to or greater than
$2.50 but less than $3.00 then the maximum funding shall be
$5,500,000; if such average price is equal to or
greater than $3.00 but less than $3.75 then the maximum funding
shall be $7,000,000; if such average price is equal to or greater
than $3.75 but less than $4.50 then the maximum funding shall be
$10,000,000; and if such average price is equal to or greater
than $4.50 then the maximum funding shall be $12,500,000;
provided, further, that the Purchasers shall not be required to
purchase any Series C Shares if the average Per Share Market
Value for the thirty Trading Days prior to the date of the Series
C Closing is less than $2.00. At the Series C Closing each
Purchaser shall be obligated (subject to the terms and conditions
herein) to purchase such portion of such Series C Shares as
equals such Purchaser's pro rata portion of the purchase price
for the Series B Shares issued and sold at the Series B Closing.
The closing of the purchase and sale of the Series C Shares (the
"Series C Closing") shall take place at the offices of Xxxxxxxx
Xxxxxxxxx on such date indicated in the Series C Subsequent
Financing Notice (which may not be prior to the 15th Trading Day
or subsequent to the 30th Trading Day after receipt by the
Purchasers of the Subsequent Financing Notice, or as
otherwise agreed to by the parties); provided that in no case
shall the Series C Closing take place unless and until the
conditions listed in Section 4.2 have been satisfied or waived by
the appropriate party. The date of the Series C Closing is
hereinafter referred to as the "Series C Closing Date" and the
purchase price paid for the Series C Shares is hereinafter
referred to as the "Series C Purchase Price.")
(ii) At the Series C Closing, (a) the Company
shall deliver (A) to each Purchaser (1) a pro rata portion of the
Series C Shares (determined by reference to the amount of Series
B Shares issued and sold at the Series B Closing) to be issued
and sold thereat (or such other amount upon which the parties may
agree), registered in the name of the appropriate Purchaser, (2)
the legal opinion referenced in Section 4.2(xii), substantially
in the form attached hereto as Exhibit C, and (3) all other
documents, instruments and writings required to have been
delivered at or prior to the Series C Closing by the Company to
the Purchasers pursuant to this Agreement; and (b) each Purchaser
shall deliver to the Company (1) the purchase price for the
Series C Shares being purchased by it at the Series C Closing in
United States dollars in immediately available funds by wire
transfer to an account designated in writing by the Company for
such purpose on or prior to the Series C Closing Date and (2) all
documents, instruments and writings required to have been
delivered at or prior to the Series C Closing by such Purchaser
pursuant to this Agreement.
(c) The Series D Closing. (i) Subject to the terms
and conditions set forth in this Agreement, the Company shall, if
the average Per Share Market Value for the thirty Trading Days
prior to the date of the Series D Subsequent Financing Notice is
greater than $2.00 and if the sum of the Series B Purchase Price
and the Series C Purchase Price is less than $20,000,000, have
the right to deliver a written notice to the Purchasers (a
"Series D Subsequent Financing Notice") requiring the Purchasers
to purchase Series D Shares. The Company may deliver a Series D
Subsequent Financing Notice no earlier than 90 days after the
effective date of the Underlying Shares Registration Statement
relating to the securities issued at the Series C Closing Date
and no later than 270 days after the effective date of such
Registration Statement (such 270th day,, the "Series D Closing
Expiration Date") and such Subsequent Financing Notice shall set
forth the dollar amount of Series D Shares that the Company
intends to sell to the Purchasers, provided, however, that the
minimum amount of such sale and purchase shall be $1,500,000 and
the maximum amount of such sale and purchase shall be based upon
the average Per Share Market Value for the thirty Trading Days
prior to the date of the Series D Closing as follows: if such
average price is greater than $2.00 but less than $2.50 then the
maximum funding shall be $4,000,000; if such average price is
equal to or greater than $2.50 but less than $3.00 then the
maximum funding shall be $5,500,000; if such average
price is equal to or greater than $3.00 but less than $3.75 then
the maximum funding shall be $7,000,000; if such average price is
equal to or greater than $3.75 but less than $4.50 then the
maximum funding shall be $10,000,000; and if such average price
is equal to or greater than $4.50 then the maximum funding shall
be $12,500,000; provided, further, that the Purchasers shall not
be required to purchase any Series D Shares if the average Per
Share Market Value for the thirty Trading Days prior to the date
of the Series D Closing is less than $2.00, and provided,
further, that in no event shall the aggregate purchase price of
Shares sold and purchased pursuant to this Agreement exceed
$20,000,000 and if the amount of Series D Shares to be sold and
purchased at the Series D Closing would cause the aggregate
purchase price of Shares sold pursuant to this Agreement to
exceed $20,000,000 (including such Series D Shares to be sold and
purchased) then the amount of Series D Shares to be sold at the
Series D Closing shall be reduced to an amount so that the
aggregate purchase price of Shares sold pursuant to this
Agreement does not exceed $20,000,000. At the Series D
Closing each Purchaser shall be obligated (subject to the terms
and conditions herein) to purchase such portion of such Series D
Shares as equals such Purchaser's pro rata portion of the
purchase price for the Series B Shares issued and sold at the
Series B Closing. The closing of the purchase and sale of the
Series D Shares (the "Series D Closing") shall take place at the
offices of Xxxxxxxx Xxxxxxxxx on such date indicated in the
Series D Subsequent Financing Notice (which may not be prior to
the 15th Trading Day or subsequent to the 30th Trading Day after
receipt by the Purchasers of the Subsequent Financing Notice, or
as otherwise agreed to by the parties); provided that in no case
shall the Series D Closing take place unless and until the
conditions listed in Section 4.2 have been satisfied or waived by
the appropriate party. The date of the Series D Closing is
hereinafter referred to as the "Series D Closing Date."
(ii) At the Series D Closing, (a) the Company
shall deliver (A) to each Purchaser (1) a pro rata portion of the
Series D Shares (determined by reference to the amount of Series
B Shares issued and sold at the Series B Closing) to be issued
and sold thereat (or such other amount upon which the parties may
agree), registered in the name of the appropriate Purchaser, (2)
the legal opinion referenced in Section 4.1(xii), substantially
in the form attached hereto as Exhibit C, and (3) all other
documents, instruments and writings required to have been
delivered at or prior to the Series D Closing by the Company to
the Purchasers pursuant to this Agreement; and (b) each Purchaser
shall deliver to the Company (1) the purchase price for the
Series D Shares being purchased by it at the Series D Closing in
United States dollars in immediately available funds by wire
transfer to an account designated in writing by the Company for
such purpose on or prior to the Series D Closing Date and (2) all
documents, instruments and writings required to have been
delivered at or prior to the Series D Closing by such Purchaser
pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations, Warranties and Agreements of the
Company. The Company hereby makes the following representations
and warranties to the Purchasers:
(a) Organization and Qualification. The Company is a
corporation, duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with the
requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. The Company has no subsidiaries other than as set
forth in Schedule 2.1(a) (collectively the "Subsidiaries"). Each
of the Subsidiaries is a corporation, duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation or organization (as applicable), with the
full corporate power and authority to own and use its properties
and assets and to carry on its business as currently conducted.
Each of the Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, would not, individually or in the aggregate, (x)
adversely affect the legality, validity or enforceability of the
Preferred Stock or any of the Transaction Documents (as defined
below) in any material respect, (y) have or result in a material
adverse effect on the results of operations, assets, prospects,
or financial condition of the Company and the Subsidiaries, taken
as a whole or (z) adversely impair the Company's ability to
perform fully on a timely basis its obligations under any
Transaction Document (any of (x), (y) or (z), being a "Material
Adverse Effect").
(b) Authorization; Enforcement. The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and
the other Transaction Documents, and otherwise to carry out its
obligations hereunder and thereunder. This Agreement, the
Certificates of Designation and the Registration Rights Agreement
are collectively referred to as the "Transaction Documents". The
execution and delivery of each of the Transaction Documents by
the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action
is required by the Company. Each of the Transaction Documents
has been duly executed by the Company and when delivered in
accordance with the terms hereof will constitute the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or
by other equitable principles of general application. Neither
the Company nor any Subsidiary is in violation of any of the
provisions of its respective certificate of incorporation,
articles, by-laws or other charter documents.
Prior to each of the closing dates the respective Certificate of
Designation has been filed with the Secretary of State of the
State of Delaware and will be in full force and effect,
enforceable against the Company in accordance with the terms
thereof.
(c) Capitalization. The authorized, issued and
outstanding capital stock of the Company is set forth in Schedule
2.1(c). No shares of Common Stock are entitled to preemptive or
similar rights, nor is any holder of the Common Stock entitled to
preemptive or similar rights arising out of any agreement or
understanding with the Company by virtue of any of the
Transaction Documents. Except as disclosed in Schedule 2.1(c),
there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or, except as a result of the purchase and sale of
the Shares, securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for
or acquire any shares of Common Stock, or contracts, commitments,
understandings, or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of
Common Stock, or securities or rights convertible or exchangeable
into shares of Common Stock. To the knowledge of the Company,
except as specifically disclosed in the SEC Documents (as defined
below) or Schedule 2.1(c), no Person or group of related Persons
beneficially owns (as determined pursuant to Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) or has the right to acquire by agreement
with or by obligation binding upon the Company beneficial
ownership of in excess of 5% of the Common Stock. A "Person"
means an individual or corporation, partnership, trust,
incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity
of any kind.
(d) Issuance of Shares. The Shares are duly
authorized, and when issued and paid for in accordance with the
terms hereof, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, encumbrances and
rights of first refusal of any kind (collectively, "Liens"). The
Company, as at the Series B Closing Date, the Series C Closing
Date and the Series D Closing Date (each a "Closing Date"), as
the case may be, will have and at all times while the Shares are
outstanding will maintain an adequate reserve of duly authorized
shares of Common Stock to enable it to perform its obligations
under this Agreement and the Certificates of Designation with
respect to the number of Shares issued and outstanding at such
Closing Date and in no circumstances shall such reserved and
available shares of Common Stock be less than the sum of (i) 175%
times the maximum number of shares of Common Stock which would be
issuable upon conversion of the Shares issued pursuant to the
terms hereof with respect to the number of Shares issued and
outstanding at such Closing Date were such conversion effected on
the Original Issue Date for such Shares and (ii) the number of
shares Common Stock which would be issuable upon
payment of dividends on the Shares, assuming each Share is
outstanding for two years. The shares of Common Stock issuable
upon conversion of the Shares and which may be issued as payment
of dividends on the Shares are collectively referred to herein as
the "Underlying Shares." When issued in accordance with the
Certificates of Designation, the Underlying Shares will be duly
authorized, validly issued, fully paid and nonassessable, free
and clear of all Liens.
(e) No Conflicts. The execution, delivery and
performance of this Agreement and the other Transaction Documents
by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not
(i) conflict with or violate any provision of its certificate of
incorporation, bylaws or other charter documents (each as amended
through the date hereof) or (ii) subject to obtaining the
consents referred to in Section 2.1(f), 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 (evidencing a Company
debt or otherwise) to which the Company is a party or by which
any property or asset of the Company is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including
Federal and state securities laws and regulations), or by which
any material property or asset of the Company is bound or
affected, except in the case of each of clauses (ii) and (iii),
such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not,
individually or in the aggregate, have or result in a Material
Adverse Effect. The business of the Company is not being
conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually
or in the aggregate, would not have a Material Adverse Effect.
(f) Consents and Approvals. Except as specifically
set forth in Schedule 2.1(f), neither the Company nor any
Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other person in connection with
the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filings of the
Certificates of Designation with respect to the Preferred Stock
with the Secretary of State of Delaware, which filings with
respect to each of the Series B Shares, the Series C Shares and
the Series D Shares shall be effected prior to the Series B
Closing Date, the Series C Closing Date and the Series D Closing
Date, as appropriate, (ii) the filing of Underlying Shares
Registration Statements with the Securities and Exchange
Commission (the "Commission"), which shall
be filed in accordance with and in the time periods set forth in
the Registration Rights Agreement, (iii) the application(s) or
any letter(s) acceptable to the Nasdaq National Market for the
listing of the Underlying Shares with the Nasdaq National Market
(and with any other national securities exchange or market on
which the Common Stock is then listed), (iv) any filings, notices
or registrations under applicable state securities laws, and (v)
other than, in all other cases, where the failure to obtain such
consent, waiver, authorization or order, or to give such notice
or make such filing or registration would not have or result in,
individually or in the aggregate, a Material Adverse Effect
(together with the consents, waivers, authorizations, orders,
notices and filings referred to in Schedule 2.1(f), the "Required
Approvals").
(g) Litigation; Proceedings. Except as specifically
disclosed in the Disclosure Materials (as hereinafter defined)
there is no action, suit, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
Subsidiaries or any of their respective properties before or by
any court, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) which (i)
adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the
Preferred Stock or (ii) could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
(h) No Default or Violation. Neither the Company nor
any Subsidiary (i) is in default under or in violation of any
indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its
properties is bound, (ii) is in violation of any order of any
court, arbitrator or governmental body applicable to it, or (iii)
is in violation of any statute, rule or regulation of any
governmental authority to which it is subject, except as could
not reasonably be expected to, in any such case (individually or
in the aggregate) have or result in a Material Adverse Effect.
(i) Schedules. The Schedules to this Agreement
furnished by or on behalf of the Company do not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading.
(j) Private Offering. Neither the Company nor any
Person acting on its behalf has taken or will take any action
which might subject the offering, issuance or sale of the
Securities to the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act").
(k) SEC Documents; Financial Statements; No Adverse
Change. The Company has filed all reports required to be filed
by it under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including pursuant to Section 13(a) or 15(d)
thereof, for the three years preceding the date hereof (or such
shorter period as the Company was required by law to file such
material) (the foregoing materials being collectively referred to
herein as the "SEC Documents" and, together with the Schedules to
this Agreement, the "Disclosure Materials") on a timely basis or
has received a valid extension of such time of filing and has
filed any such SEC Documents prior to the expiration of any such
extension. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, and none of the SEC
Documents, when filed, 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. All material agreements to which the
Company is a party or to which the property or assets of the
Company are subject have been filed as exhibits to the SEC
Documents as required; neither the Company nor any of its
subsidiaries is in breach of any agreement where such breach
would have or result in a Material Adverse Effect. The financial
statements of the Company included in the SEC Documents comply in
all material respects with applicable accounting requirements and
the rules and regulations of the Commission with respect thereto
as in effect at the time of filing. Such financial statements
have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the
periods involved, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in
all material respects the financial position of the Company as of
and for the dates thereof and the results of operations and cash
flows for the periods then ended, subject, in the case of
unaudited statements, to normal year-end audit adjustments.
Since the date of the financial statements included in the
Company's last filed Quarterly Report on Form 10-Q
for the period ended September 30, 1997, there has been no event,
occurrence or development that has had a Material Adverse Effect
which has not been specifically disclosed to the Purchasers by
the Company. The Company last filed audited financial statements
with the Commission on March 24, 1997, and has not received any
comments from the Commission in respect thereof.
(l) Seniority. No class of equity securities of the
Company is senior to the Preferred Stock in right of payment,
whether upon liquidation, dissolution or otherwise.
(m) Investment Company. The Company is not, and is
not controlled by or under common control with an affiliate (an
"Affiliate") of, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(n) Certain Fees. Except for Fees payable to Xxxxx
Xxxxxxx Asset Management, LLC pursuant to Section 3 of the letter
agreement (the "Engagement Letter") dated December 1, 1997
between the Company and Xxxxx Xxxxxxx Asset Management, no fees
or commissions will be payable by the Company to any broker,
financial advisor, finder, investment banker, or bank with
respect to the transactions contemplated by this Agreement. The
Purchasers shall have no obligation with respect to any fees or
with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due
in connection with the transactions contemplated by this
Agreement. The Company shall indemnify and hold harmless each of
the Purchasers, its employees, officers, directors, agents, and
partners, and their respective Affiliates (as such term is
defined under Rule 405 promulgated under the Securities Act),
from and against all claims, losses, damages, costs (including
the costs of preparation and attorney's fees) and expenses
suffered in respect of any such claimed or existing fees.
(o) Solicitation Materials. The Company has not (i)
distributed any offering materials in connection with the
offering and sale of the Shares or the Underlying Shares other
than the Disclosure Materials and any amendments and supplements
thereto or (ii) solicited any offer to buy or sell the Shares or
the Underlying Shares by means of any form of general
solicitation or advertising. None of the Disclosure Materials or
any other information provided to the Purchasers by or on behalf
of the Company contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(p) Form S-3 Eligibility. The Company is, and at each
Closing Date will be, eligible to register securities for resale
with the Commission under Form S-3 promulgated under the
Securities Act.
(q) Exclusivity. The Company shall not issue and sell
the Preferred Stock to any Person other than the Purchasers
pursuant to this Agreement other than with the specific prior
written consent of each of the Purchasers.
(r) Listing and Maintenance Requirements Compliance.
The Company has not in the two years preceding the date hereof
received notice (written or oral) from any stock exchange, market
or trading facility on which the Common Stock is or has been
listed (or on which it has been quoted) to the effect that the
Company is not in compliance with the listing or maintenance
requirements of such exchange or market. After giving effect to
the transactions contemplated in this Agreement, the Company
believes that it is in compliance with all such maintenance
requirements.
(s) Patents and Trademarks. The Company has, or has
rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights,
licenses and rights (collectively, the "Intellectual Property
Rights") which are necessary for use in connection with its
business, as currently conducted and as described in the SEC
Documents, and which the failure to so have would have a Material
Adverse Effect. Except as disclosed in Schedule 2.1(s), to the
best knowledge of the Company, there is no existing infringement
by another Person of any of the Intellectual Property Rights
which are necessary for use in connection with the Company's
business.
(t) Acknowledgement of Dilution. The Company
acknowledges that the issuance of the Underlying Shares upon
conversion of the Shares and payment of dividends thereon in
accordance with the Certificates of Designation 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 to issue
Underlying Shares upon conversion of the Shares and payment of
dividends thereon in accordance with the Certificates of
Designation is unconditional and absolute regardless of the
effect of any such dilution.
(u) Registration Rights; Rights of Participation.
Except as described on Schedule 2.1(u) hereto, (A) the Company
has not granted or agreed to grant to any Person any rights
(including "piggy-back" registration rights) to have any
securities of the Company registered with the Commission or any
other governmental authority which has not been satisfied and (B)
no Person, including, but not limited to, current or former
shareholders of the Company, underwriters, brokers or agents, has
any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by this Agreement or any other
Transaction Document.
(v) Title. Except as disclosed in Schedule 2.1(v),
the Company and the Subsidiaries have good and marketable title
in fee simple to all real property and personal property owned by
them which is material to the business of the Company and its
Subsidiaries, in each case free and clear of all Liens, except
for liens, claims or encumbrances as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries. Any real property and facilities held under lease
by the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
Subsidiaries.
(w) Regulatory Permits. The Company and its
Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses as
described in the SEC Documents except where the failure to
possess such permits would not, individually or in the aggregate,
have a Material Adverse Effect ("Material Permits"), and neither
the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any
Material Permit.
2.2 Representations and Warranties of the Purchasers. Each
of the Purchasers, severally and not jointly, hereby represents
and warrants to the Company as follows:
(a) Organization; Authority. Such Purchaser is a
corporation duly incorporated or a limited partnership duly
formed, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation with the
requisite power and authority, corporate or otherwise, to enter
into and to consummate the transactions contemplated hereby and
by the Registration Rights Agreement and otherwise to carry out
its obligations hereunder and thereunder. The purchase by such
Purchaser of the Shares hereunder has been duly authorized by all
necessary action on the part of such Purchaser. Each of this
Agreement and the Registration Rights Agreement has been duly
executed and delivered by such Purchaser and constitutes the
valid and legally binding obligation of such Purchaser,
enforceable against such Purchaser, in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
generally and to general principles of equity.
(b) Investment Intent. Such Purchaser is acquiring
the Shares and the Underlying Shares for its own account for
investment purposes only and not with a view to or for
distributing or reselling such Shares or Underlying Shares or any
part thereof or interest therein, without prejudice, however, to
such Purchaser's right, subject to the provisions of this
Agreement and the Registration Rights Agreement, at all times to
sell or otherwise dispose of all or any part of such Shares or
Underlying Shares pursuant to an effective registration statement
under the Securities Act and in compliance with applicable State
securities laws or under an exemption from such registration.
(c) Purchaser Status. At the time such Purchaser was
offered the Shares, it was, and at the date hereof, it is, and at
each Closing Date, it will be, an "accredited investor" as
defined in Rule 501(a)(1), (a)(2), (a)(3) or (a)(4) under the
Securities Act.
(d) Experience of Purchaser. Such Purchaser either
alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters
so as to be capable of evaluating the merits and risks of the
prospective investment in the Shares and the Underlying Shares,
and has so evaluated the merits and risks of such investment.
(e) Ability of Purchaser to Bear Risk of Investment.
Such Purchaser is able to bear the economic risk of an investment
in the Shares and the Underlying Shares and, at the present time,
is able to afford a complete loss of such investment.
(f) Access to Information. Each Purchaser
acknowledges receipt of the Disclosure Materials and further
acknowledges that it has been afforded (i) the opportunity to ask
such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms
and conditions of the offering of the Shares and the Underlying
Securities and the merits and risks of investing in the Shares
and the Underlying Securities; (ii) access to information about
the Company and the Company's financial condition, results of
operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information which the
Company possesses or can acquire without unreasonable effort or
expense that is necessary to make an informed investment decision
with respect to the investment and to verify the accuracy and
completeness of the information contained in the Disclosure
Materials.
(g) Reliance. Each Purchaser understands and
acknowledges that (i) the Shares are being offered and sold to
the Purchaser without registration under the Securities Act in a
private placement that is exempt from the registration provisions
of the Securities Act under Section 4(2) of the Securities Act or
Regulation D promulgated thereunder and (ii) the availability of
such exemption, depends in part on, and the Company will rely
upon the accuracy and truthfulness of, the foregoing
representations and such Purchaser hereby consents to such
reliance.
The Company acknowledges and agrees that the Purchasers
make no representations or warranties with respect to the
transactions contemplated hereby other than those specifically
set forth in this Section 2.2.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Transfer Restrictions. (a) If any Purchaser should
decide to dispose of Shares (and upon conversion thereof any of
the Underlying Shares) held by it, each Purchaser understands and
agrees that it may do so only pursuant to an effective
registration statement under the Securities Act, to the Company
or pursuant to an available exemption from the registration
requirements of the Securities Act. In connection with any
transfer of any Shares or any Underlying Shares other than
pursuant to an effective registration statement or to the
Company, the Company may require the transferor thereof to
provide to the Company a written opinion of counsel experienced
in the area of United States securities laws selected by the
transferor, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that
such transfer does not require registration of such transferred
securities under the Securities Act. Notwithstanding the
foregoing, the Company hereby consents to and agrees to register
(i) any transfer of Shares by one Purchaser to another Purchaser,
and agrees that no documentation other than executed transfer
documents shall be required for any such transfer, and (ii) any
transfer by any Purchaser to an Affiliate of such Purchaser or to
an Affiliate of another Purchaser, or any transfer among any such
Affiliates, provided that transferee certifies to the Company
that it is an "accredited investor" as defined in Rule 501(a)
under the Securities Act. Any such transferee shall be bound by
the terms of this Agreement and shall have the rights of a
Purchaser under this Agreement and the Registration Rights
Agreement.
(b) Each Purchaser agrees to the imprinting, so long
as is required by this Section 3.1(b), of the following legend on
the Shares and the Underlying Shares:
[NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH
THESE SECURITIES ARE CONVERTIBLE HAVE] [THE SECURITIES
REPRESENTED HEREBY HAVE NOT] BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
[FOR SHARES ONLY] THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AND CONVERSION SET FORTH IN A CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT, DATED AS OF DECEMBER 9, 1997, EXECUTED
BY THE ORIGINAL HOLDER HEREOF. A COPY OF THAT AGREEMENT IS
ON FILE AT THE PRINCIPAL OFFICE OF CYTOGEN CORPORATION.
The Underlying Shares issuable upon conversion of
Shares or as payment of dividends thereon shall not contain the
legend set forth above if the conversion of such Shares or the
payment of such dividends occurs at any time while the Underlying
Shares Registration Statement is effective under the Securities
Act or in the event there is not an effective Underlying Shares
Registration Statement at such time, if in the written opinion of
counsel to the Company experienced in the area of United States
securities laws such legend is not required under applicable
requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the
Commission). The Company agrees that it will provide each
Purchaser, upon request, with a certificate or certificates
representing Underlying Shares, free from such legend at such
time as such legend is no longer required hereunder.
3.2 Stop Transfer Instruction. The Company may not make
any notation on its records or give instructions to any transfer
agent of the Company which enlarge the restrictions of transfer
set forth in Section 3.1.
3.3 Furnishing of Information. As long as any Purchaser
owns Shares or Underlying Shares, the Company covenants to timely
file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to Section 13(a) or 15(d)
of the Exchange Act and to promptly furnish the Purchasers with
true and complete copies of all such filings. As long as any
Purchaser owns Shares or Underlying Shares, if the Company is not
required to file reports pursuant to Section 13(a) or 15(d) of
the Exchange Act, it will prepare and furnish to the Purchasers
and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly
financial statements, together with a discussion and analysis of
such financial statements in form and substance substantially
similar to those that would otherwise be required to be included
in reports required by Section 13(a) or 15(d) of the Exchange
Act, as well as any other information required thereby, in the
time period that such filings would have been required to have
been made under the Exchange Act. The Company further covenants
that it will take such further action as any holder of Shares may
reasonably request, all to the extent required from time to time
to enable such Person to sell Underlying Shares without
registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including the legal opinion referenced
above in this Section. Upon the request of any such Person, the
Company shall deliver to such Person a written certification of a
duly authorized officer as to whether it has complied with such
requirements.
3.4 Blue Sky Laws. In accordance with the Registration
Rights Agreement, the Company shall qualify the Underlying Shares
under the securities or Blue Sky laws of such jurisdictions as
the Purchasers may request and shall continue such qualification
at all times through the third anniversary of the last Closing
Date; provided, however, that neither the Company nor its
Subsidiaries shall be required in connection therewith to qualify
as a foreign corporation where they are not now so qualified or
to take any action that would subject the Company to general
service of process in any such jurisdiction where it is not then
so subject or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
3.5 Integration. The Company shall not sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act)
that would be integrated with the offer or sale of the Shares or
the Underlying Shares in a manner that would require the
registration under the Securities Act of the sale of the Shares
or the Underlying Shares to any Purchaser.
3.6 Certain Agreements. As long as any Purchaser owns
Shares, the Company shall not and shall cause the Subsidiaries
not to, without the consent of the holders of all of the Shares
then outstanding, (i) amend its certificate of incorporation,
bylaws or other charter documents so as to adversely affect any
rights of any Purchaser; (ii) declare, authorize, set aside or
pay any dividend or other distribution with respect to the Common
Stock except as permitted under the Certificates of Designation
and as would not adversely affect the rights of any Purchaser
hereunder or under the Certificates of Designation; (iii) repay,
repurchase or offer to repay, repurchase or otherwise acquire
shares of its Common Stock in any manner; or (iv) enter into any
agreement with respect to any of the foregoing.
3.7 Listing and Reservation of Underlying Shares. (a) The
Company shall (i) not later than the fifth Business Day following
the applicable Closing Date prepare and file with the Nasdaq
National Market (as well as any other national securities
exchange or market on which the Common Stock is then listed) an
additional shares listing application or a letter acceptable to
the Nasdaq National Market covering and listing a number of
shares of Common Stock which is at least equal to 175% of the
maximum number of Underlying Shares then issuable assuming the
payment of all future dividends on the Shares then outstanding
were made in shares of Common Stock, (ii) take all steps
necessary to cause the Underlying Shares to be approved for
listing in the Nasdaq National Market (as well as on any other
national securities exchange or market on which the Common Stock
is then listed) as soon as possible thereafter, and (iii) provide
to the Purchasers evidence of such listing, and the Company shall
maintain the listing of its Common Stock on such exchange.
(b) The Company shall reserve for issuance upon
conversion of the Shares and for payment of dividends thereupon
in shares of Common Stock pursuant to the terms of the
Certificates of Designation the number of shares to be listed on
the Nasdaq National Market (and such other national securities
exchange or market on which the Common Stock is then listed or
traded) as set forth in Section 3.7(a). Shares of Common Stock
reserved for issuance upon the conversion of the Shares as set
forth in Section 3.7(a) shall be allocated pro rata to each of
the Purchasers in accordance with the amount of Shares issued and
delivered to such Purchaser at each Closing, as applicable.
3.8 No Violation of Applicable Law. Notwithstanding any
provision of this Agreement to the contrary, if the redemption of
Shares or Underlying Shares otherwise required under this
Agreement or the Registration Rights Agreement would be
prohibited by the relevant provisions of the Delaware General
Corporation Law, such redemption shall be effected as soon as it
is permitted under such law; provided, however, that from the 5th
day after such redemption notice until such redemption price is
paid in full, interest on any such unpaid amount shall accrue at
the rate of 15% per annum.
3.9 Notice of Breaches. (a) Each of the Company and each
Purchaser shall give prompt written notice to the other of any
breach of any representation, warranty or other agreement
contained in this Agreement or in the Registration Rights
Agreement, as well as any events or occurrences arising after the
date hereof and prior to, with respect to the Series C Closing,
the Series C Closing Date and with respect to the Series D
Closing, the Series D Closing Date, which would reasonably be
likely to cause any representation or warranty or other agreement
of such party, as the case may be, contained herein to be
incorrect or breached as of such Closing Date. However, no
disclosure by either party pursuant to this Section 3.9 shall be
deemed to cure any breach of any representation, warranty or
other agreement contained herein or in the Registration Rights
Agreement.
(b) Notwithstanding the generality of Section 3.9(a)
the Company shall promptly notify each Purchaser of any notice or
claim (written or oral) that it receives from any lender of the
Company to the effect that the consummation of the transactions
contemplated hereby and by the Registration Rights Agreement
violates or would violate any written agreement or understanding
between such lender and the Company, and the Company shall
promptly furnish by facsimile to the holders of the Shares a copy
of any written statement in support of or relating to such claim
or notice.
(c) The default by any Purchaser of any of its
obligations, representations or warranties under any Transaction
Document shall not be imputed to, and shall have no effect upon,
any other Purchaser or affect the Company's obligations under the
Transaction Documents to any non-defaulting Purchaser.
3.10 Conversion Obligations of the Company. The Company
covenants to convert Shares and to deliver Underlying Shares in
accordance with the terms and conditions and time period set
forth in the respective Certificates of Designation.
3.11 Subsequent Registrations. Other than Underlying Shares
and other "Registrable Securities" (as defined in the
Registration Rights Agreement) to be registered in accordance
with the Registration Rights Agreement, the Company shall not,
for a period of not less than 90 Trading Days after the date that
the Underlying Shares Registration Statement relating to the
securities issued at the Series B Closing Date, the Series C
Closing Date and the Series D Closing Date is declared effective
by the Commission, without the prior written consent of the
Purchasers, (i) issue or sell any of its or any of its
Affiliates' equity or equity-equivalent securities pursuant to
Regulation S promulgated under the Securities Act, or (ii)
register for resale any securities of the Company. Any days that
any Purchaser is unable to sell Underlying Shares under an
Underlying Shares Registration Statement shall be
added to such 90 Trading Day period for the purposes of (i) and
(ii) above.
3.12 Press Release. The Company shall issue a press release
within two Business Days of the Series B Closing Date, the Series
C Closing Date and the Series D Closing Expiration Date, as
applicable, relating to the issue and sale of the Shares to the
Purchasers which press releases shall be approved by each party
to this Agreement.
3.13 Use of Proceeds. The Company shall use all of the
proceeds from the sale of the Shares for working capital and
general corporate purposes and not for the satisfaction of any
portion of Company borrowings or to redeem Company equity or
equity-equivalent securities. Pending application of the
proceeds of this placement in the manner permitted hereby, the
Company will invest such proceeds in interest bearing accounts
and/or short-term, investment grade interest bearing securities.
3.14 Reimbursement. In the event that any Purchaser, other
than by reason of its gross negligence or willful misconduct,
becomes involved in any capacity in any action, proceeding or
investigation brought by or against any person, including
stockholders of the Company, in connection with or as a result of
the consummation of the transactions contemplated pursuant to the
Transaction Documents, the Company will reimburse such Purchaser
for its legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith.
In addition, with respect to each Purchaser, other than with
respect to any matter in which such Purchaser is a named party,
the Company will pay such Purchaser the charges, as reasonably
determined by such Purchaser, for the time of any officers or
employees of such Purchaser devoted to appearing and preparing to
appear as witnesses, assisting in preparation for hearings,
trials or pretrial matters, or otherwise with respect to
inquiries, hearings, trials, and other proceedings relating to
the subject matter of this Agreement. The reimbursement
obligations of the Company under this paragraph shall be in
addition to any liability which the Company may otherwise have,
shall extend upon the same terms and conditions to any affiliate
of each Purchaser and partners, directors, agents, employees and
controlling persons (if any), as the case may be, of each
Purchaser and any such affiliate, and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and
personal representatives of the Company, each Purchaser and any
such affiliate and any such person. The Company also agrees that
no Purchaser or any such affiliates, partners, directors, agents,
employees or controlling persons shall have any liability to the
Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of the
consummation of the Transaction Documents except to
the extent that any losses, claims, damages, liabilities or
expenses incurred by the Company result from the gross negligence
or willful misconduct of such Purchaser or entity in connection
with the transactions contemplated by this Agreement.
ARTICLE IV
CONDITIONS
4.1 (a) Conditions Precedent to the Obligation of the
Company to Sell the Series B Shares. The obligation of the
Company to sell the Series B Shares hereunder is subject to the
satisfaction or waiver by the Company, at or before the Series B
Closing, of each of the following conditions:
(i) Accuracy of the Purchasers' Representations
and Warranties. The representations and warranties of each
Purchaser shall be true and correct in all material respects as
of the date when made and as of the Series B Closing Date, as
though made on and as of such date;
(ii) Performance by the Purchasers. Each
Purchaser shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by such Purchaser at or prior to the Series B Closing; and
(iii) No Injunction. No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions
contemplated by this Agreement or the Registration Rights
Agreement.
(b) Conditions Precedent to the Obligation of the
Purchasers to Purchase the Series B Shares. The obligation of
each Purchaser hereunder to acquire and pay for the Series B
Shares is subject to the satisfaction or waiver by such
Purchaser, at or before the Series B Closing, of each of the
following conditions:
(i) Accuracy of the Company's Representations and
Warranties. The representations and warranties of the Company
set forth in this Agreement and in the Registration Rights
Agreement shall be true and correct in all material respects as
of the date when made and as of the Series B Closing Date as
though made on and as of such date;
(ii) Performance by the Company. The Company
shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by
the Company at or prior to the Series B Closing;
(iii) No Injunction. No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions
contemplated by this Agreement or the Registration Rights
Agreement;
(iv) Adverse Changes. Since the date of the
financial statements included in the Company's Quarterly Report
on Form 10-Q or Annual Report on Form 10-K, whichever is more
recent, last filed prior to the date of this Agreement, no event
which had a Material Adverse Effect and no material adverse
change in the financial condition or prospects of the Company
shall have occurred which is not disclosed in the Disclosure
Materials (for purposes hereof changes in the market price of the
Common Stock may be considered in determining whether there has
occurred an event which has had a Material Adverse Effect or
whether a material adverse change has occurred);
(v) No Suspensions of Trading in Common Stock.
The trading in the Common Stock shall not have been suspended by
the Commission or on the Nasdaq National Market which suspension
shall remain in effect.
(vi) Listing of Common Stock. The Company shall
have filed a listing application to list the Underlying Shares
for trading on the Nasdaq National Market;
(vii) Legal Opinion. The Company shall have
delivered to the Purchasers the opinions of Xxxxxx X. Xxxxx, Xx.,
the Company's general counsel, and Xxxxx Xxxxxxxxxx LLP, outside
counsel to the Company, in substantially the form attached hereto
as Exhibit C-1 and Exhibit C-2, respectively;
(viii) Required Approvals. All Required
Approvals shall have been obtained other than those relating
solely to the Series C Shares and the Series D Shares;
(ix) Shares of Common Stock. On or prior to the
Series B Closing Date, the Company shall have duly reserved the
number of Underlying Shares required by the Transaction Documents
to be reserved for issuance upon conversion of Series B Shares
and payment of dividends thereon;
(x) Delivery of Stock Certificates. The Company
shall have delivered to each Purchaser or such Purchaser's
designee the stock certificate(s) representing the Series B
Shares, registered in the name of such Purchaser, each in form
satisfactory to the Purchaser;
(xi) Registration Rights Agreement. The Company
shall have executed and delivered the Registration Rights
Agreement;
(xii) Certificates of Designation. The Series
B Designation shall have been duly filed with the Secretary of
State of Delaware, and the Company shall have delivered a copy
thereof to the Purchaser certified as filed by the office of the
Secretary of State of Delaware;
(xiii) Change of Control. No Change of Control
(as hereafter defined) shall have occurred between the date
hereof and the Series B Closing Date; and
(xiv) Transfer Agent Instructions. The
Irrevocable Transfer Agent Instructions, in the form of Exhibit D
attached hereto, shall have been delivered to and acknowledged in
writing by the Company's transfer agent.
4.2 Conditions Precedent to the Obligation of the
Purchasers to Purchase the Series C Shares and the Series D
Shares. The obligation of each Purchaser hereunder to acquire
and pay for the Series C Shares and the Series D Shares is
subject to the satisfaction or waiver by each Purchaser, at or
before the Series C Closing or the Series D Closing, as
applicable, of each of the following conditions:
(i) Series B Closing. The Series B Closing shall
have occurred;
(ii) Accuracy of the Company's Representations and
Warranties. The representations and warranties of the Company
contained herein and in the Registration Rights Agreement shall
be true and correct in all material respects as of the date when
made and as of the Series C Closing Date and the Series D Closing
Date, as applicable, as though made on and as of such date;
(iii) Performance by the Company. The Company
shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required
by this Agreement and the Registration Rights Agreement to be
performed, satisfied or complied with by the Company at or prior
to the Series C Closing Date and the Series D Closing Date, as
applicable;
(iv) Underlying Shares Registration Statements.
With respect to the Series C Closing, the Underlying Shares
Registration Statement with respect to the Underlying Shares
issuable on conversion of all outstanding Series B Shares and as
payment of dividends thereon shall have been declared effective
under the Securities Act by the Commission; and with respect to
the Series D Closing, the Underlying Shares Registration
Statement with respect to the Underlying Shares issuable on
conversion of all outstanding Series C Shares and as payment of
dividends thereon shall have been declared effective under the
Securities Act by the Commission; and on each such Closing Date
such Underlying Shares Registration Statement shall be effective,
not subject to any stop order and not be subject to any
suspension pursuant to Section 3(p) of the Registration Rights
Agreement, and shall have been effective and shall not have been
subject to any stop order for the ninety (90) days prior to such
Closing Date and no stop order shall be pending or threatened as
at such Closing Date;
(v) No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court of
governmental authority of competent jurisdiction which prohibits
the consummation of any of the transactions contemplated by this
Agreement or the Registration Rights Agreement relating to the
issuance or conversion of any of the Shares;
(vi) Adverse Changes. During the period which is
10 Trading Days prior to the date of the delivery of either a
Series C Subsequent Financing Notice or a Series D Subsequent
Financing Notice and the date of the Series C Closing and the
Series D Closing, respectively, the closing bid price on the
Common Stock shall not have decreased by more than 50% from the
highest closing bid price during such period; provided, however,
that if the closing bid price shall have so decreased by more
than 50%, but shall have subsequently increased so that on the
applicable Closing Date it is no more than 25% below the highest
closing bid price during such period then this condition shall be
satisfied;
(vii) Litigation. No material litigation
shall have been instituted or threatened against the Company;
(viii) Management. In the reasonable judgment
of each Purchaser, there have been no substantial changes in the
senior management of the Company, other than the hiring of a new
Chief Executive Officer or new Chief Financial Officer in
connection with the Company's search, in effect on the date of
this Agreement, to fill such positions;
(ix) No Suspensions of Trading in Common Stock.
The trading in the Common Stock shall not have been suspended by
the Commission or on the Nasdaq National Market (except for any
suspension of trading of limited duration solely to permit
dissemination of material information regarding the Company and
except if, at the time there is any suspension on the Nasdaq
National Market, the Common Stock is then listed and approved for
trading on the Nasdaq SmallCap Market within one (1) trading day
thereof);
(x) Listing of Common Stock. The Common Stock
shall have been at all times since the Series B Closing Date, and
on the Series C Closing Date and the Series D Closing Date be
listed for trading on the Nasdaq National Market or Nasdaq
SmallCap
Market;
(xi) Change of Control. No Change of Control in
the Company shall have occurred. "Change of Control" means the
occurrence of any of (i) an acquisition after the date hereof by
an individual or legal entity or "group" (as described in Rule
13d-5(b)(1) promulgated under the Exchange Act) of in excess of
50% of the voting securities of the Company, (ii) a replacement
of more than one-half of the members of the Company's board of
directors which is not approved by those individuals who are
members of the board of directors on the date hereof in one or a
series of related transactions, (iii) the merger of the Company
with or into another entity, consolidation or sale of all or
substantially all of the assets of the Company in one or a series
of related transactions or (iv) the execution by the Company of
an agreement to which the Company is a party or by which it is
bound, providing for any of the events set forth above in (i),
(ii) or (iii);
(xii) Legal Opinion. The Company shall have
delivered to the Purchasers the opinions of the Company's general
counsel and outside counsel, in substantially the form attached
hereto as Exhibit C-1 and Exhibit C-2, respectively, each dated
the applicable Closing Date;
(xiii) Required Approvals. All Required
Approvals shall have been obtained;
(xiv) Shares of Common Stock. On each of the
Series C Closing Date and the Series D Closing Date the Company
shall have duly reserved the number of Underlying Shares required
by this Agreement to be reserved for issuance upon conversion of
Series C Shares and Series D Shares, respectively, and payment of
dividends thereon;
(xv) Delivery of Stock Certificates. The Company
shall have delivered to each Purchaser or such Purchaser's
designee the stock certificate(s) representing the Shares, being
purchased at such Closing, registered in the name of such
Purchaser, each in form satisfactory to such Purchaser;
(xvi) Performance of Conversion/Exercise
Obligations. The Company shall have delivered Underlying Shares
upon conversion of Shares and otherwise performed its obligations
in accordance with the terms, conditions and timing requirements
of each Certificate of Designation;
(xvii) Closing Thresholds. (a) (i) The Company
shall have sold and the Purchasers shall have purchased, pursuant
to this Agreement, including amounts sold and purchased on the
applicable Closing Date, Preferred Stock with a purchase price of
at least $11,000,000, or (ii) with respect to the transactions
contemplated by the Transaction Documents, the Company shall have
received the approval of its stockholders necessary to satisfy
the shareholder approval provisions of the Nasdaq Stock Market,
or any other exchange or market on which the Common Stock is then
listed or traded, with respect to the issuance of 20% or more of
a company's capital stock, or any similar stockholder approval
requirements, or (b) on each of the 30 Trading Days prior to the
applicable Closing Date, the Per Share Market Value of the Common
Stock shall have been at least $4.50 per share; and
(xviii) Transfer Agent Instructions. The
Irrevocable Transfer Agent Instructions, in the form of Exhibit D
attached hereto, shall have been delivered to and acknowledged in
writing by the Company's transfer agent.
(xix) Officer's Certificate. On each Closing
Date the Company shall deliver to the Purchaser's an Officer's
Certificate dated the Closing Date and signed by an executive
officer of the Company confirming the accuracy of the Company's
representations, warranties and covenants as of such Closing Date
and confirming the compliance by the Company with the conditions
precedent set forth in this Section 4.2 as of such Closing Date.
ARTICLE V
MISCELLANEOUS
5.1 Fees and Expenses. Each party shall pay the fees
and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and
performance of this Agreement, except as set forth in the
Registration Rights Agreement. The Company shall pay all stamp
and other taxes and duties levied in connection with the issuance
of the Shares pursuant hereto.
5.2 Entire Agreement; Amendments. This Agreement,
together with the Exhibits and Schedules hereto, the Registration
Rights Agreement and each Certificate of Designation (each when
filed) contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to
such matters, except that the provisions of Section 3 and Section
5 of the Engagement Letter shall survive.
5.3 Notices. Any notice or other communication
required or permitted to be given hereunder shall be in writing
and shall be deemed to have been received (a) upon hand delivery
(receipt acknowledged) or delivery by telex (with correct answer
back received), telecopy or facsimile (with transmission
confirmation report) at the address or number designated below
(if delivered on a business day during normal business hours
where such notice is to be received), or the first business day
following such delivery (if delivered on a business day after
during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall
first occur. The addresses for such communications shall as set
forth below each parties name on Schedule 1, and if to the
Company with copies to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxxxx Xxxxxx, Esq., fax:
(000) 000-0000, and if to any Purchaser with copies to Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxxxxx, Esq.,
fax: (000) 000-0000, or such other address as may be designated
in writing hereafter, in the same manner, by such person.
5.4 Amendments; Waivers. No provision of this
Agreement may be waived or amended except in a written instrument
signed, in the case of an amendment, by both the Company and the
Purchasers; or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either
party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
Notwithstanding the foregoing, no such amendment shall be
effective to the extent that it applies to less than all of the
holders of the Shares outstanding. The Company shall not offer
or pay any consideration to a Purchaser for consenting to such an
amendment or waiver unless the same consideration is offered to
each Purchaser and the same consideration is paid to each
Purchaser which consents to such amendment or waiver.
5.5 Headings. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
5.6 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Company may not assign
this Agreement or any rights or obligations hereunder without the
prior written consent of each of the Purchasers. No Purchaser
may assign this Agreement (other than to an Affiliate of such
Purchaser) or any rights or obligations hereunder without the
prior written consent of the Company, except that any Purchaser
may assign its rights hereunder and under the Transaction
Documents without the consent of the Company as long as such
assignee demonstrates to the reasonable satisfaction of the
Company its satisfaction of the representations and warranties
set forth in Section 2.2. This provision shall not limit a
Purchaser's right to transfer securities or transfer or assign
rights hereunder or under the Registration Rights Agreement.
5.7 No 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.
5.8 Governing Law. This Agreement shall be governed
by and construed and enforced in accordance with the internal
laws of the State of New York without regard to the principles of
conflicts of law thereof. Each party 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,
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.
5.9 Survival. The agreements and covenants contained
in Article III and this Article V shall survive the delivery and
conversion of the Shares pursuant to this Agreement and the
representations and warranties of the Company and the Purchasers
contained in Article II shall survive each Closing hereunder and
any conversion of Shares.
5.10 Execution. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to
the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create
a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same
force and effect as if such facsimile signature page were an
original thereof.
5.11 Publicity. The Company and each Purchaser shall
consult with each other in issuing any press releases or
otherwise making public statements with respect to the
transactions contemplated hereby and neither party shall issue
any such press release or otherwise make any such public
statement without the prior written consent of the other, which
consent shall not be unreasonably withheld or delayed, except
that no prior consent shall be required if such disclosure is
required by law, in which such case the disclosing party shall
provide the other party with prior notice of such public
statement. The Company shall not publicly or otherwise disclose
the names of any of the Purchasers without each such Purchaser's
prior written consent.
5.12 Severability. In case any one or more of the
provisions of this Agreement shall be invalid or unenforceable in
any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be
affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a
reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Agreement.
5.13 Remedies. In addition to being entitled to
exercise all rights provided herein or granted by law, including
recovery of damages, the Purchasers will be entitled to specific
performance of the obligations of the Company under the
Transaction Documents. Each of the Company and the Purchasers
(severally and not jointly) agree that monetary damages would not
be adequate compensation for any loss incurred by reason of any
breach of its obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be
adequate.
5.14 Independent Nature of Purchasers' Obligations and
Rights. The obligations of each Purchaser hereunder is 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 any 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 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.
5.15 No Reliance. Each party acknowledges that (i) it
has such knowledge in business and financial matters as to be
fully capable of evaluating this Agreement, the other Transaction
Documents and the transactions contemplated hereby and thereby,
(ii) it is not relying on any advice or representation of the
other party in connection with entering into this Agreement, the
other Transaction Documents or such transactions (other than the
representations made in this Agreement or the other Transaction
Documents), (iii) it has not received from 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 such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the parties hereto have caused this Convertible Preferred Stock Purchase
Agreement to be duly executed by their respective authorized persons as of
the date first indicated above.
CYTOGEN CORPORATION SOUTHBROOK INTERNATIONAL INVESTMENTS,
LTD.
By: /s/ Xxxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------- -----------------------------
Name: Xxxxxx X. XxXxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title:Chairman, President Title: Attornedy In Fact
& Chief Executive Officer
XXXXXXXX INVESTMENTS L.P.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
MONTROSE INVESTMENTS L.P.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
HERACLES FUND
By Promethean Investment Group
L.L.C., its investment advisor
By: /s/ Xxxxx X. X'Xxxxx, Xx.
-----------------------------
Name: Xxxxx X. X'Xxxxx, Xx.
Title: Managing Member
THEMIS PARTNERS, L.P.
By Promethean Investment Group
L.L.C., its general partner
By: /s/ Xxxxx X. X'Xxxxx, Xx.
-------------------------------
Name: Xxxxx X. X'Xxxxx, Xx.
Title: Managing Member
XXXXX XXXXXXX STRATEGIC GROWTH
FUND, L.P.
By: /s/ Xxxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxxx X. Xxx
Title: Principal
XXXXX XXXXXXX STRATEGIC GROWTH
FUND, LTD.
By: /s/ Xxxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxxx X. Xxx
Title: Principal
Exhibit A Filed as Exhibit 3.1
Exhibit B Filed as Exhibit 10.2
EXHIBIT X-0
Xxxxxxxx 0, 0000
Xxxxxxxxxx International
Investments, Ltd. Heracles Fund
C/o Trippoak Advisors Bank of Bermuda (Cayman)
Inc. X.X. Xxx 000
630 Fifth Avenue, Suite 0000 0xx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000 American Center
Xx. Xxx'x Drive
Xxxxxxxx Investments, L.P. Georgetown, Grand Cayman
c/o HBK Investments, L.P. Cayman Island, BWI
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000 Themis Partners, L.P.
c/o Promethean Investment
Montrose Investments, L.P. Group, L.L.C.
c/o HBK Investments, L.P. 00 Xxxx 00xx Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000 Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx Strategic Growth Xxxxx Xxxxxxx Strategic
Fund, L.P. Growth Fund, Ltd.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx 152 West 57th Street, 40th Floor
New York, New York, 10019 Xxx Xxxx, Xxx Xxxx 00000
Re: Cytogen Corporation
The undersigned is Vice President and General Counsel of
Cytogen Corporation, a Delaware corporation (the "Company"),
and provides this opinion in connection with the execution
and delivery of the Convertible Preferred Stock Purchase
Agreement, dated as of December 8, 1997 (the "Purchase
Agreement"), by and among the Company and Southbrook
International Investments, Ltd., Xxxxxxxx Investments, L.P.,
Montrose Investments, L.P., Heracles Fund, Themis Partners,
L.P., Xxxxx Xxxxxxx Strategic Growth Fund, L.P., and Xxxxx
Xxxxxxx Strategic Growth Fund, Ltd. (collectively, the
"Purchasers"), pursuant to which the Company is issuing to
the Purchasers shares of its Series B Convertible Preferred
Stock, par value $.01 per share (the "Series B Preferred").
Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Purchase
Agreement.
This opinion is delivered to you pursuant to Section 1.3 of
the Purchase Agreement.
In connection with this opinion, I have examined:
(a) An executed copy of the Purchase Agreement;
(b) The Series B Designation of the Company;
(c) The Registration Rights Agreement;
(d) The Certificate of Incorporation and By-laws of the
Company and of each Subsidiary, each as amended to the
date hereof; and
(e) Records of proceedings and actions of the Board of
Directors of the Company and of the Finance Committee
thereof relating to the transactions contemplated by
the Purchase Agreement and the Registration Rights
Agreement.
The documents reference is (a) through (d) above are
referred to herein as the "Operative Documents").
I have also examined such additional corporate records of
the Company and such other documents and public records as I
have deemed necessary or appropriate to render the opinions
contained herein.
I have assumed the genuineness of all signatures (except
those of officers of the Company), the authenticity of all
documents submitted to me as originals and the conformity to
original documents of documents submitted to us as
certified, conformed or photostatic copies. I have also
assumed, without verification, the legal capacity of each
individual who has executed documents or instruments in
connection with the transaction contemplated hereby. With
respect to certain factual matters, I have relied, without
independent investigation on the facts stated in the
representations and warranties contained in the Purchase
Agreement and the Schedules thereto and the SEC Documents
(other than in each case facts constituting conclusions of
law).
I have also assumed, without verification (i) that the
parties to the Purchase Agreement and the other agreements,
instruments and documents executed in connection therewith,
other than the Company, have the power (including, without
limitation, corporate power where applicable) and authority
to enter into and perform the Purchase Agreement and
such other agreements, instruments and documents, (ii) the
due authorization, execution and delivery by such other
parties of the Purchase Agreement and such other agreements,
instruments and documents, and (iii) that the Purchase
Agreement and such other agreements, instruments and
documents constitute legal, valid and binding obligations of
each such other party, enforceable against such other party
in accordance with their respective terms.
Based upon and subject to the foregoing, I am of the opinion
that:
1. Each of the Company and its Subsidiaries is a
corporation, duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, with the requisite corporate power and
authority to own and use its properties and assets and to
carry on its business as currently conducted. The Company
has no subsidiaries other than the Subsidiaries. Each of the
Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation in
each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification
necessary.
2. The execution, delivery and performance of the
Operative Documents by the Company and the consummation by
the Company of the transactions contemplated by such
agreements do not and will not (i) conflict with or violate
any provision of its Certificate of Incorporation or Bylaws,
(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 is a party, or
(iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company is
subject (including Federal and state securities laws and
regulations), or by which any property or asset of the
Company is bound or affected. To our knowledge, the
business of the Company is not being conducted in violation
of any law, ordinance or regulation of any governmental
authority.
3. Other than as may be set forth in Schedule 2.1(f) to
the Purchase Agreement, neither the Company nor any
Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal,
state, local or other governmental authority or other person
in connection with the execution, delivery and performance
by the Company of the Transaction Documents.
4. To my knowledge, the Company has filed all reports
required to be filed by it under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including pursuant
to Section 13(a) or 15(d) thereof, for the three years
preceding the date hereof (or such shorter period as the
Company was required by law to file such material
collectively, the "SEC Documents") on a timely basis. As of
their respective dates, the SEC Documents complied in all
material respects as to form with the requirements of the
Securities Act and the Exchange Act and the rules and
regulations of the Securities and Exchange Commission
promulgated thereunder.
I do not undertake to advise you or anyone else of any
changes in the opinions expressed herein resulting from
changes in laws, changes in facts or any other matters that
hereafter might occur or be brought to my attention that did
not exist on the date hereof and of which I had no
knowledge.
Very truly yours,
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President General Counsel
and Secretary
EXHIBIT X-0
Xxxxxxxx 0, 0000
Xxxxxxxxxx International Investments, Ltd.
Xxxxxxxx Investments L.P.
Montrose Investments L.P.
Heracles Fund
Themis Partners, X.X.
Xxxxx Xxxxxxx Strategic Growth Fund, X.X.
Xxxxx Xxxxxxx Strategic Growth Fund, Ltd.
c/x Xxxxx Xxxxxxx Strategic Growth Fund, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to Cytogen Corporation, a
Delaware corporation (the "Company"), in connection with the
execution and delivery of the Convertible Preferred Stock
Purchase Agreement, dated as of December 9, 1997 (the
"Purchase Agreement"), by and among the Company and Southbrook
International Investments, Ltd., Xxxxxxxx Investments L.P.,
Montrose Investments L.P., Heracles Fund, Themis Partners
L.P., Xxxxx Xxxxxxx Strategic Growth Fund, L.P. and Xxxxx
Xxxxxxx Strategic Growth Fund, Ltd. (collectively, the
"Purchasers"), pursuant to which the Company is issuing to the
Purchasers shares of its 6% Convertible Preferred Stock,
Series B, par value $0.01 per share (the "Series B
Preferred"). This opinion is being delivered to you pursuant
to Section 4.2 (xii) of the Purchase Agreement. Capitalized
terms used herein without definition shall have the respective
meanings ascribed to them in the Purchase Agreement.
In connection with this opinion, we have examined
and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the following:
(a) a copy of the Restated Certificate of
Incorporation of the Company, including all amendments
thereto, as in effect on the date hereof (the
"Certificate of Incorporation");
(b) a copy of the By-laws of the Company, as
amended to date;
(c) a record of corporate proceedings of the
Company relating to the authorization of the issuance,
sale and delivery of the Shares being sold by the
Company to the Purchasers, including the execution and
delivery of the Purchase Agreement and Registration
Rights Agreement;
(d) an executed copy of the Purchase Agreement;
(e) the Registration Rights Agreement; and
(f) the Certificate of Designation of the Company's
6% Convertible Preferred Stock, Series B (the
"Certificate of Designation").
The documents referred to in (a) through (f) above
are referred to herein as the "Operative Documents."
For the purpose of this opinion, we have assumed
that the certificates representing the Shares being sold by
the Company to the Purchasers will conform as to form to the
specimen certificate thereof examined by us, which assumption
we have not independently verified.
In addition, we have had conferences with officers
of the Company and with counsel for the Company and have
ascertained or verified facts which we have deemed necessary
or relevant.
We have also investigated such questions of law,
including, without limitation, Regulation D ("Regulation D")
promulgated under the Securities Act of 1933, as amended (the
"Securities Act") and examined such additional corporate
records of the Company and other documents and public records
as we have deemed necessary or appropriate to render the
opinions contained herein.
We have assumed the genuineness of all signatures
(except those of officers of the Company), the authenticity of
all documents submitted to us as originals and the conformity
to original documents of documents submitted to us as
certified, conformed or photostatic copies. We have also
assumed, without verification, the legal capacity of each
individual who has executed documents or instruments in
connection with the transaction contemplated hereby. With
respect to certain factual matters, we have relied, without
independent investigation, on the facts stated in the
representations and warranties contained in the Purchase
Agreement and the Schedules thereto and the SEC Documents
(other than in each case facts constituting conclusions of
law).
We have also assumed, without verification (i) that
the parties to the Purchase Agreement and the other
agreements, instruments and documents executed in connection
therewith, other than the Company, have the power (including,
without limitation, corporate power where applicable) and
authority to enter into and perform the Purchase Agreement and
such other agreements, instruments and documents, (ii) the due
authorization, execution and delivery by such other parties of
the Purchase Agreement and such other agreements, instruments
and documents, and (iii) that the Purchase Agreement and such
other agreements, instruments and documents constitute legal,
valid and binding obligations of each such other party,
enforceable against each such other party in accordance with
their respective terms.
Based upon and subject to the foregoing, we are of
the opinion that:
1. The Company has the requisite corporate power
and authority to enter into and consummate the transactions
contemplated by each of the Operative Documents and otherwise
to carry out its obligations thereunder. The execution and
delivery of each of the Operative Documents by the Company and
the consummation by it of the transactions contemplated
thereby have been duly authorized by all necessary action on
the part of the Company. Each of the Operative Documents has
been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies
or by other equitable principles of general application.
2. No shares of the Company's common stock, $0.01
par value per share, are entitled to preemptive rights under
the Delaware General Corporation Law or the Company's Restated
Certificate of Incorporation.
3. The Series B Preferred has been duly authorized
and, when paid for and issued in accordance with the terms of
the Purchase Agreement, shall have been validly issued, fully
paid and nonassessable.
4. The Company has duly authorized and reserved
for issuance such number of shares of Common Stock as are
issuable upon conversion of the Series B Preferred and
dividends thereon (collectively, the "Underlying Shares") in
accordance with the terms of the Purchase Agreement and the
Certificate of Designation. When issued by the Company in
accordance with the terms of the Purchase Agreement and the
Certificate of Designation, such Underlying Shares will be
validly issued, fully paid and nonassessable.
5. Assuming the accuracy of the representations
and warranties of the Company set forth in Section 2.1 of the
Purchase Agreement and of the Purchasers set forth in Section
2.2 of the Purchase Agreement, the offer, issuance and sale of
the Series B Preferred and the offer of the Underlying Shares
to the Purchasers pursuant to the Purchase Agreement and the
Certificate of Designation are exempt from the registration
requirements of the Securities Act.
We express no opinion as to the laws of any
jurisdiction other than the laws of the State of New York, the
general corporate laws of the State of Delaware and the
federal law of the United States of America. The foregoing
opinion is rendered as of the date hereof, and we assume no
obligation to update such opinion to reflect any facts or
circumstances which may hereafter come to our attention or any
changes in the law which may hereafter occur.
This letter is furnished solely for your information
in connection with the private placement and sale of the
Shares and may not be relied upon by any other person.
Very truly yours,
XXXXX XXXXXXXXXX LLP
EXHIBIT D
December 8, 1997
Xxxxx Xxxxxx Shareholder Services
00 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Re: TRANSFER AGENT INSTRUCTIONS
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement
to be entered into by and among Cytogen Corporation, a Delaware
corporation (the "Company"), and the buyers named therein
(collectively, the "Holders") pursuant to which the Company is
issuing to the Holders shares of its Series B Convertible
Preferred Stock, par value $0.01 per share (the "Preferred
Shares"), which shall be convertible into shares of the Company's
Common Stock, par value $0.01 per share (the "Common Stock").
This letter shall serve as our irrevocable authorization and
direction to you (provided that you are the transfer agent of the
Company at such time) to issue shares of Common Stock upon
conversion of the Preferred Shares (the "Conversion Shares") to
or upon the order of a Holder from time to time upon (i)
surrender to you of a properly completed and duly executed
Conversion Notice, in the form attached hereto as Exhibit I,
which has been acknowledged by the Company as indicated by the
signature of a duly authorized officer of the Company thereon,
and (ii) certificates representing Preferred Shares being
converted (or an indemnification undertaking with respect to such
share certificates in the case of their loss, theft or
destruction). So long as you have previously received (x)
written confirmation from counsel to the Company that a
registration statement covering resales of the Conversion Shares
has been declared effective by the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as
amended (the "1933 Act"), and (y) a copy of such registration
statement, certificates representing the Conversion Shares shall
not bear any legend restricting transfer of the Conversion Shares
thereby and should not be subject to any stop-transfer
restriction. Provided, however, that if you have not previously
received (i) written confirmation from counsel to the Company
that a registration statement covering resales of the Conversion
Shares has been declared effective by the SEC under the 1933 Act,
and (ii) a copy of such registration statement, then the
certificates for the Conversion Shares shall bear the following
legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
and, provided further, that the Company may from time to time
notify you to place stop-transfer restrictions on the
certificates for the Conversion Shares in the event a
registration statement covering the Conversion Shares is subject
to amendment for events then current.
A form of written confirmation from counsel to the Company that a
registration statement covering resales of the Conversion Shares
has been declared effective by the SEC under the 1933 Act is
attached hereto as Exhibit II.
Please be advised that the Holders are relying upon this letter
as an inducement to enter into the Securities Purchase Agreement
and, accordingly, each Holder is a third party beneficiary to
these instructions.
Please execute this letter in the space indicated to acknowledge
your agreement to act in accordance with these instructions.
Should you have any questions concerning this matter, please
contact me at (000) 000-0000.
Very truly yours,
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President General Counsel
and Secretary
ACKNOWLEDGED AND AGREED:
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Assistant Vice President
Date: December 8, 1997
EXHIBIT I
NOTICE OF CONVERSION
AT THE ELECTION OF HOLDER
(To be Executed by the Registered Holder
in order to Convert shares of Preferred Stock)
The undersigned hereby elects to convert the number of shares of
Series B Convertible Preferred Stock indicated below, into shares
of Common Stock, par value $.01 per share (the "Common Stock"),
of Cytogen Corporation (the "Company") according to the
conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the
undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions
as reasonably requested by the Company in accordance therewith.
No fee will be charged to the holder for any conversion, except
for such transfer taxes, if any.
Conversion calculations: -------------------------------
Date to Effect Conversion
-------------------------------
Number of shares of Preferred
-------------------------------
Stock to be Converted
-------------------------------
Number of shares of Common
Stock to be Issued
-------------------------------
Applicable Conversion Price
-------------------------------
Signature
-------------------------------
Name
-------------------------------
Address
EXHIBIT II
[Xxxxx Xxxxxxxxxx LLP Letterhead]
[Addressee]
[Address]
To Whom It May Concern:
The Registration Statement on Form S-3 (File No.
333-______________) of Cytogen Corporation was declared effective
at
___:____ __.M. Eastern Time on _____________, 199___.
Very truly yours,
