6,250,000 Units OXiGENE, INC. PLACEMENT AGENT AGREEMENT
Exhibit 1.1
6,250,000
Units
OXiGENE, INC.
July 15, 2009
Lazard Capital Markets LLC
▇▇▇▇▇▇▇▇ Curhan Ford & Co.
c/o Lazard Capital Markets LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Curhan Ford & Co.
c/o Lazard Capital Markets LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introduction. OXiGENE, Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to the purchasers, pursuant to the terms and conditions of this
Placement Agent Agreement (this “Agreement”) and the Subscription Agreements in the form of
Exhibit A attached hereto (the “Subscription Agreements”) entered into with the purchasers
identified therein (each a “Purchaser” and collectively, the “Purchasers”), up to an aggregate of
6,250,000 units (the “Units”) with each Unit
consisting of (i) one share (a “Share,”
collectively, the “Shares”) of common stock, $0.01 par
value per share (the “Common Stock”) of the Company,
(ii) one warrant to purchase 0.45 shares
of Common Stock
(a “Series I Warrant”) and (iii) one warrant (the
“Series II Warrant”, and together with the Series I
Warrant, the “Warrants”) to purchase up to 0.45
shares of Common Stock, for an aggregate purchase price of
$10,000,000 (the “Purchase Price”). The terms and conditions of the Warrants are set forth in the
forms of Exhibit B-1 and Exhibit B-2 attached hereto.
The Units will not be issued or certificated. The Shares and Warrants
are immediately separable and will be issued separately. The shares
of Common Stock issuable upon exercise of the Warrants are referred
to herein as the “Warrant Shares” and, together with
the Units, the Shares and the Warrants, are referred to herein as the
“Securities.”
The Company hereby confirms its agreement with Lazard
Capital Markets LLC (“LCM”) and ▇▇▇▇▇▇▇▇ Curhan Ford & Co. (“▇▇▇▇▇▇▇▇”, together with LCM, the
“Placement Agents”) to act as Placement Agents in accordance with the terms and conditions hereof.
LCM is acting as the representative of the Placement Agents and in such capacity is hereinafter
referred to as the “Representative.”
2. Agreement to Act as Placement Agents; Placement
of Securities. On the basis
of the representations, warranties and agreements of the Company herein contained, and subject to
all the terms and conditions of this Agreement:
2.1 The Company has authorized and hereby acknowledges that the Placement Agents have
acted as its exclusive agents to solicit offers for the purchase of all or part of the Units
from the Company in connection with the proposed offering of the Units (the “Offering”).
Until the Closing Date (as defined in Section 4 hereof) or earlier upon the
termination of this Agreement pursuant to Section 9, the Company shall not, without
the prior written consent of the Representative, solicit or accept offers to purchase Units
otherwise than through the Placement Agents. LCM may utilize the expertise of Lazard Frères
& Co. LLC in connection with LCM’s placement agent activities.
2.2 The Company hereby acknowledges that the Placement Agents, as agents of the
Company, used their best efforts to solicit offers to purchase the Units from the
Company on the terms and subject to the conditions set forth in the Prospectus (as
defined below). The Placement Agents shall use commercially reasonable efforts to assist the
Company in obtaining performance by each Purchaser whose offer to purchase Units was
solicited by the Placement Agents and accepted by the Company, but the Placement Agents
shall not, except as otherwise provided in this Agreement, be obligated to disclose the
identity of any potential purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Under no circumstances will the Placement
Agents be obligated to underwrite or purchase any Units for their own accounts and, in
soliciting purchases of Units, the Placement Agents acted solely as the Company’s agents and
not as principals. Notwithstanding the foregoing and except as otherwise provided in
Section 2.3, it is understood and agreed that the Placement Agents (or their
affiliates) may, solely at their discretion and without any obligation to do so, purchase
Units as principals.
2.3 Subject to the provisions of this Section 2, offers for the purchase of
Units were solicited by the Placement Agents as agents for the Company at such times and in
such amounts as the Placement Agents deem advisable. Each Placement Agent shall communicate
to the Company, orally or in writing, each reasonable offer to purchase Units received by it
as agent of the Company. The Company shall have the sole right to accept offers to purchase
the Units and may reject any such offer, in whole or in part. Each Placement Agent shall
have the right, in its discretion reasonably exercised, without notice to the Company, to
reject any offer to purchase Units received by it, in whole or in part, and any such
rejection shall not be deemed a breach of this Agreement.
2.4 The Units are being sold to the Purchasers at a price of $1.60 per Unit. The
purchases of the Units by the Purchasers shall be evidenced by the execution of Subscription
Agreements by each of the Purchasers and the Company.
2.5 As compensation for services rendered, on the Closing Date (as defined in
Section 4 hereof), the Company shall pay to the Placement Agents by wire transfer of
immediately available funds to an account or accounts designated by the Representative, an
aggregate amount equal to six and one half percent (6.5%) (the “Placement Fee”) of the gross
proceeds received by the Company from the sale of the Units on such Closing Date.
2.6 No Units which the Company has agreed to sell pursuant to this Agreement and the
Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the
Company, until such Units shall have been delivered to the Purchaser thereof against payment
by such Purchaser. If the Company shall default in its obligations to deliver Units to a
Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement
Agents harmless against any loss, claim, damage or expense arising from or as a result of
such default by the Company in accordance with the procedures set forth in Section 8(c)
herein.
3. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Placement Agents and the Purchasers that:
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(a) The Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), and published rules and
regulations thereunder (the “Rules and Regulations”) adopted by the Securities and Exchange
Commission (the “Commission”) a “shelf” Registration Statement (as hereinafter defined) on
Form S-3 (File No. 333-155371), which became effective as of December 1, 2008 (the
“Effective Date”), including a base prospectus relating to the securities registered
pursuant to such Registration Statement (the “Base Prospectus”), and such amendments and
supplements thereto as may have been required to the date of this Agreement. The term
“Registration Statement” as used in this Agreement means the registration statement
(including all exhibits, financial schedules and all documents and information deemed to be
a part of the Registration Statement pursuant to Rule 430A of the Rules and Regulations), as
amended and/or supplemented to the date of this Agreement, including the Base Prospectus.
The Registration Statement is effective under the Securities Act and no stop order
preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus has been issued by the Commission and no proceedings
for that purpose have been instituted or, to the knowledge of the Company, are threatened by
the Commission. The Company, if required by the Rules and Regulations of the Commission,
will file the Prospectus (as defined below), with the Commission pursuant to Rule 424(b) of
the Rules and Regulations. The term “Prospectus” as used in this Agreement means the
Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, or, if the Prospectus is not to be filed with the
Commission pursuant to Rule 424(b), the Prospectus in the form included as part of the
Registration Statement as of the Effective Date, except that if any revised prospectus or
prospectus supplement shall be provided to the Representative by the Company for use in
connection with the offering and sale of the Securities which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is required to be filed by
the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus”
shall refer to such revised prospectus or prospectus supplement, as the case may be, from
and after the time it is first provided to the Placement Agents for such use. Any
preliminary prospectus or prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 of the Rules and Regulations is
hereafter called a “Preliminary Prospectus.” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
on or before the last to occur of the Effective Date, the date of the Preliminary
Prospectus, or the date of the Prospectus, and any reference herein to the terms “amend,”
“amendment,” or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any
document under the Exchange Act after the Effective Date, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, which is incorporated by
reference and (ii) any such document so filed. If the Company has filed an abbreviated
registration statement to register additional securities pursuant to Rule 462(b) under the
Rules and Regulations (the “462(b) Registration Statement”), then any reference herein to
the
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Registration Statement shall also be deemed to include such 462(b) Registration
Statement.
(b) As of the Applicable Time (as defined below) and as of the Closing Date, neither
(i) any General Use Free Writing Prospectus (as defined below) issued at or prior to the
Applicable Time, and the Pricing Prospectus (as defined below) and the information included
on Schedule A hereto, all considered together (collectively, the “General Disclosure
Package”) nor (ii) any individual Limited Use Free Writing Prospectus (as defined below),
included or will include, any untrue statement of a material fact or omitted or as of the
Closing Date will omit, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to information
contained in or omitted from any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company through the Representative by
or on behalf of any Placement Agent specifically for inclusion therein, which information
the parties hereto agree is limited to the Placement Agents’ Information (as defined in
Section 17). As used in this paragraph (b) and elsewhere in this Agreement:
“Applicable Time” means 5:00 P.M., New York time, on the date of this Agreement.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule A to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the Rules and Regulations relating to the
Securities in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“Limited Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that
is not a General Use Free Writing Prospectus.
“Pricing Prospectus” means the Preliminary Prospectus, if any, and the Base Prospectus, each
as amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof.
(c) No order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus relating to the Offering has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities
Act has been instituted or, to the knowledge of the Company, threatened by the Commission,
and each Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Securities Act and the Rules and Regulations, and did
not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to
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information contained in or omitted from any Preliminary Prospectus, in reliance upon,
and in conformity with, written information furnished to the Company through the
Representative by or on behalf of any Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the Placement Agents’ Information
(as defined in Section 17).
(d) At the time the Registration Statement became or becomes effective, at the date of
this Agreement and at the Closing Date, the Registration Statement conformed and will
conform in all material respects to the requirements of the Securities Act and the Rules and
Regulations and did not and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus, at the time the Prospectus was issued and at the
Closing Date, conformed and will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and warranties in this
paragraph (d) shall not apply to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by or on behalf of any
Placement Agent specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agents’ Information (as defined in Section 17).
(e) Each Issuer Free Writing Prospectus, if any, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Units or until
any earlier date that the Company notified or notifies the Representative as described in
Section 5(e), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified, or includes an untrue statement of a material fact or omitted
or would omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with,
written information furnished to the Company through the Representative by or on behalf of
any Placement Agent specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agents’ Information (as defined in Section 17).
(f) The documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and none of such documents contained
any untrue statement of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
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misleading; and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading.
(g) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Offering other than any Preliminary Prospectus,
the Prospectus and other materials, if any, permitted under the Securities Act and
consistent with Section 5(b) below. The Company is not an “ineligible issuer” in
connection with the offering pursuant to Rules 164, 405 or 433 under the Securities Act. The
Company will file with the Commission all Issuer Free Writing Prospectuses, if any, in the
time and manner required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.
(h) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The Company is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such qualification
and has all power and authority necessary to own or hold its properties and to conduct the
business in which it is engaged, except where the failure to so qualify or have such power
or authority (i) would not have, singularly or in the aggregate, a material adverse effect
on the condition (financial or otherwise), results of operations, assets, business or
prospects of the Company, or (ii) impair in any material respect the ability of the Company
to perform its obligations under this Agreement or to consummate any transactions
contemplated by the Agreement, the General Disclosure Package or the Prospectus (any such
effect as described in clauses (i) or (ii), a “Material Adverse Effect”). Except for its
investments in Optigenex Inc. and in Symphony ViDA, Inc., the Company does not own or
control, directly or indirectly, any interest in any corporation, partnership, limited
liability partnership, limited liability company, association or other entity. The Company
has no subsidiaries (as defined in Section 16).
(i) The Company has all necessary corporate power and authority to enter into this
Agreement, each of the Subscription Agreements, the Warrants and that certain Escrow Agreement (the
“Escrow Agreement”) dated as of the date hereof by and among the Company, the Placement
Agent and the escrow agent named therein, and to perform and to discharge its obligations
hereunder and thereunder; and each of this Agreement, the Escrow Agreement and each of the
Subscription Agreements has been, and the Warrants upon execution and
delivery according to the terms and conditions of this Agreement and
the Subscription Agreements will be, duly authorized, executed and delivered by the Company, and
constitutes a valid and binding obligation of the Company enforceable in accordance with its
terms, except as rights to indemnity and contribution hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
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(j) The shares of Common Stock to be issued and sold by the Company to the Purchasers
hereunder and under the Subscription Agreements and the Warrant Shares issuable upon
the exercise of the Warrants have been duly and validly authorized
and the Common Stock, when issued and delivered against payment therefor as provided herein
and in the Subscription Agreements and the Warrant Shares, when issued and delivered against
payment therefor as provided in the Warrants, will be duly and validly issued, fully paid
and non-assessable and free of any preemptive or similar rights and will conform to the
description thereof contained in the General Disclosure Package and the Prospectus.
(k) The Company has 150,000,000 shares of authorized Common Stock and 15,000,000 shares
of authorized Preferred Stock, $0.01 par value per share (the “Preferred Stock”), and all of
the issued shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, have been issued in compliance with federal and
state securities laws, and conform to the description thereof contained in the General
Disclosure Package and the Prospectus. As of June 30, 2009, there were 46,201,743 shares of
Common Stock issued and outstanding and no shares of Preferred Stock issued and outstanding
and 3,230,625 shares of Common Stock were issuable upon the exercise of all options,
warrants and convertible securities outstanding as of such date. Since such date, the
Company has not issued any securities, other than Common Stock of the Company issued
pursuant to the exercise of rights previously outstanding under the Company’s equity
compensation plans, and except that, pursuant to the Purchase Option Agreement by and among
the Company, Symphony ViDA, Inc. and Symphony ViDA Holdings LLC, dated as of October 1,
2008, as amended July 2, 2009 (the “Symphony
Amendment”), the Company has agreed to issue shares of Common Stock in an amount to be determined pursuant to the provisions of the
Symphony Amendment. None of the outstanding shares of Common Stock was issued in violation
of any preemptive rights, rights of first refusal or other similar rights to subscribe for
or purchase securities of the Company. There are no authorized or outstanding shares of
capital stock, options, warrants, preemptive rights, rights of first refusal or other rights
to purchase, or equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company other than those described above or accurately
described in the General Disclosure Package. The description of the Company’s stock option,
stock bonus and other equity compensation plans or arrangements, and the options or other
rights granted thereunder, as described in the General Disclosure Package and the
Prospectus, accurately and fairly present, in all material respects, the information
required to be shown with respect to such plans, arrangements, options and rights.
(l) The execution, delivery and performance of this Agreement, the Subscription
Agreements, the Warrants and the Escrow Agreement by the Company, the issue and sale of the Securities by the
Company and the consummation of the transactions contemplated hereby and thereby will not
(with or without notice or lapse of time or both) conflict with or result in a breach or
violation of any of the terms or provisions of, constitute a default or Debt Repayment
Triggering Event (as defined below) under, give rise to any right of termination or other
right or the cancellation or acceleration of any right or obligation or loss of a benefit
under, or give rise to the creation or imposition of any lien,
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encumbrance, security interest, claim or charge upon any property or assets of the
Company pursuant to, any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the charter or by-laws (or analogous
governing instruments, as applicable) of the Company or any law, statute, rule, regulation,
judgment, order or decree of any court or governmental agency or body, domestic or foreign,
specifically naming the Company and having jurisdiction over the Company or any of its
properties or assets. A “Debt Repayment Triggering Event” means any event or condition that
gives, or with the giving of notice or lapse of time would give the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company.
(m) Except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state or foreign securities laws,
the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the Nasdaq Global Market
(the “Nasdaq GM”) in connection with the offering and sale of the Securities by the Company, no
consent, approval, authorization or order of, or filing, qualification or registration with,
any court or governmental agency or body, foreign or domestic, which has not been made,
obtained or taken and is not in full force and effect, is required for the execution,
delivery and performance of this Agreement, the Subscription Agreements, the Warrants and the Escrow
Agreement by the Company, the offer or sale of the Securities or the consummation of the
transactions contemplated hereby or thereby.
(n) Ernst & Young LLP, who has certified certain financial statements included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus, is an independent registered public accounting firm with respect to the
Company as required by the Securities Act and the Rules and Regulations and the Public
Company Accounting Oversight Board (United States) (the “PCAOB”). Except as disclosed in
the Registration Statement and as pre-approved in accordance with the requirements set forth
in Section 10A of the Exchange Act, Ernst & Young LLP has not been engaged by the Company to
perform any “prohibited activities” (as defined in Section 10A of the Exchange Act).
(o) The financial statements, together with the related notes and schedules, included
or incorporated by reference in the General Disclosure Package, the Prospectus and in the
Registration Statement fairly present the financial position and the results of operations
and changes in financial position of the Company at the respective dates or for the
respective periods therein specified. Such statements and related notes and schedules have
been prepared in accordance with the generally accepted accounting principles in the United
States (“GAAP”) applied on a consistent basis throughout the periods involved except as may
be set forth in the related notes included or incorporated by reference in the General
Disclosure Package. The financial statements, together with the related notes and
schedules, included or incorporated by reference in the General Disclosure Package and the
Prospectus comply in all material respects with the Securities
8
Act, the Exchange Act, and the Rules and Regulations and the rules and regulations
under the Exchange Act. No other financial statements or supporting schedules or exhibits
are required by the Securities Act or the Rules and Regulations to be described, or included
or incorporated by reference in the Registration Statement, the General Disclosure Package
or the Prospectus. There is no pro forma or as adjusted financial information which is
required to be included in the Registration Statement, the General Disclosure Package, or
the Prospectus or a document incorporated by reference therein in accordance with the
Securities Act and the Rules and Regulations which has not been included or incorporated as
so required.
(p) The Company has not sustained, since the date of the latest audited financial
statements included or incorporated by reference in the General Disclosure Package, any
material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
General Disclosure Package; and, since such date, there has not been any change in the
capital stock (other than the issuance of Common Stock pursuant to the exercise of stock
options under the Company’s equity compensation plans) or long-term debt of the Company or
any material adverse changes in or affecting the business, assets, general affairs,
management, financial position, prospects, stockholders’ equity or results of operations of
the Company, otherwise than as set forth or contemplated in the General Disclosure Package.
(q) Except as set forth in the General Disclosure Package, there is no legal or
governmental action, suit, claim or proceeding pending to which the Company is a party or of
which any property or assets of the Company is the subject which is required to be described
in the Registration Statement, the General Disclosure Package or the Prospectus or a
document incorporated by reference therein and is not described therein, or which,
singularly or in the aggregate, if determined adversely to the Company could have a Material
Adverse Effect or prevent the consummation of the transactions contemplated hereby; and to
the best of the Company’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) The Company is not (i) in violation of its charter or by-laws, (ii) in default in
any respect, and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject or (iii) in violation in any respect of any statute, law,
ordinance, governmental rule or regulation or any judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its property or assets, except with respect to
clauses (ii) and (iii), any violations or defaults which, singularly or in the aggregate,
would not have a Material Adverse Effect.
(s) The Company possesses all licenses, certificates, authorizations and permits issued
by, and has made all declarations and filings with, the appropriate state,
9
federal or foreign regulatory agencies or bodies which are necessary or desirable for
the ownership of its properties or the conduct of its business as described in the General
Disclosure Package and the Prospectus except where any failures to possess or make the same,
singularly or in the aggregate, would not have a Material Adverse Effect, and the Company
has not received notification of any revocation or modification of any such license,
certificate, authorization or permit and has no reason to believe that any such license,
certificate, authorization or permit will not be renewed.
(t) The Company is not and, after giving effect to the Offering and the application of
the proceeds thereof as described in the General Disclosure Package and the Prospectus, will
not become an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder.
(u) Neither the Company nor, to the Company’s knowledge, any of the Company’s officers,
directors or affiliates has taken or will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be expected to cause or
result in, stabilization or manipulation of the price of any security of the Company.
(v) To the best of the Company’s knowledge, the Company owns or possesses adequate
rights to use all patents, patent applications, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, trademark
registrations, service marks, service ▇▇▇▇ registrations, trade names, mask work rights and
other intellectual property necessary to carry on the business now operated by it or
proposed to be operated by it as described in the General Disclosure Package and the
Prospectus with respect to Combretastatin product candidates currently the subject of
clinical trials, as well as the TRIS salt and disodium salt formulations of CA4P (the
“Business”) (collectively, “Intellectual Property”), except where the lack of such ownership
or rights to use would not have a Material Adverse Effect. Except as disclosed in the
General Disclosure Package or the Prospectus, to the Company’s knowledge, there is no
litigation or other proceeding pending or threatened and no claims are presently being
asserted by any third party challenging or questioning the ownership, validity, or
enforceability of the Company’s right to use or own any Intellectual Property or asserting
that the use of any Intellectual Property by the Company or the operation of the Business
infringes upon or misappropriates the Intellectual Property of any third party, and the
Company is unaware of any facts which would form a reasonable basis for any such claim.
Except as disclosed in the General Disclosure Package or the Prospectus, the Company is not
otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any of the Company’s Intellectual Property or the operation of the Business.
Except as disclosed in the General Disclosure Package or the Prospectus, the Company is not
otherwise aware of any facts or circumstances which would render any of the Company’s
Intellectual Property invalid or inadequate to protect the interests of the Company therein,
or with respect to the patent applications contained in the Intellectual Property,
unpatentable. Except as disclosed in the General Disclosure Package or the
10
Prospectus, or as would not, individually or in the aggregate have a Material Adverse
Effect, to the best of the Company’s knowledge, (i) there is no infringement by third
parties engaged in commercial activity of any Intellectual Property of the Company relating
to the Business and (ii) there are no non-commercial activities being performed by any third
parties which, upon commercialization thereof, could reasonably be expected to infringe on
the Intellectual Property of the Company. The Company has taken all steps necessary to
perfect its ownership of and interest in the Intellectual Property.
(w) Except as may be disclosed in the General Disclosure Package or the Prospectus, the
Company possesses all material licenses, certificates, permits, consents, orders, approvals
and authorizations from United States and foreign government authorities, including, without
limitation, the Food and Drug Administration (the “FDA”) and any agency of any foreign
government and any other foreign regulatory authority exercising authority comparable to
that of the FDA (including any non-governmental entity whose approval or authorization is
required under foreign law comparable to that administered by the FDA) (each a “Permit”)
that are necessary to the ownership of the Company’s property or to the conduct of its
business in the manner and to the extent now conducted. Each issued Permit is currently in
full force and effect, and no proceeding has been instituted or is pending or, to the best
of the Company’s knowledge, is contemplated or threatened, which in any manner adversely
affects or draws into question the validity or effectiveness thereof or relates in any way
to the revocation or modification thereof.
(x) Except as disclosed in the General Disclosure Package or the Prospectus, (1) each
Investigational New Drug application (“IND”) submitted by the Company to the FDA or similar
application submitted by the Company to foreign regulatory bodies, and related documents and
information, has been submitted and maintained in compliance in all material respects with
applicable statutes, rules and regulations administered or promulgated by the FDA or other
regulatory body, (2) the studies, tests and preclinical and clinical trials conducted by or
on behalf of the Company that are described in the General Disclosure Package or the
Prospectus were and, if still pending, are being, conducted, to the best of the Company’s
knowledge, in all material respects in accordance with experimental protocols, procedures
and controls pursuant to, where applicable, accepted professional and scientific standards
for products or product candidates comparable to those being developed by the Company; and
the drug substances used in the clinical trials have been manufactured to the best of the
Company’s knowledge, under current Good Manufacturing Practices, and (3) the Company uses
commercially reasonable efforts to review, from time to time, the progress and results of
the studies, tests and preclinical and clinical trials and, based upon (i) the information
provided to the Company by the third parties conducting such studies, tests and preclinical
and clinical trials that are described in the General Disclosure Package and the Prospectus
and the Company’s review of such information, and (ii) the Company’s actual knowledge, the
Company reasonably believes that such descriptions of the results of such studies, tests and
preclinical and clinical trials are accurate and complete in all material respects. The
Company has not received any notices or correspondence from the FDA or any foreign, state or
local governmental body exercising comparable authority requiring the termination,
suspension or material
11
modification of any studies, tests or preclinical or clinical trials conducted by or on
behalf of the Company. No filing or submission to the FDA or any other regulatory body, that
is intended to be the basis for any approval of the Company’s product candidates, contains,
to the knowledge of the Company, any material omission or, to the knowledge of the Company,
material false information.
(y) The Company has made available to counsel to the Placement Agents, FDA and
regulatory correspondence logs, and such logs contain complete and accurate descriptions, in
all material respects, of all material correspondence between the Company on the one hand
and the FDA on the other hand, relating to the clinical trials of the Company’s product
candidates under development being conducted under the two (2) Company-sponsored INDs.
(z) The Company has good and marketable title in fee simple to, or has valid rights to
lease or otherwise use, all items of real or personal property which are material to the
business of the Company, in each case free and clear of all liens, encumbrances, security
interests, claims and defects that may result in a Material Adverse Effect.
(aa) No organized labor disturbance by the employees of the Company exists or, to the
best of the Company’s knowledge, is imminent which might be expected to have a Material
Adverse Effect. The Company is not aware that any key employee or significant group of
employees of the Company plans to terminate employment with the Company.
(bb) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986,
as amended from time to time (the “Code”)) or “accumulated funding deficiency” (as defined
in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other
than events with respect to which the thirty (30)-day notice requirement under Section 4043
of ERISA has been waived) has occurred or could reasonably be expected to occur with respect
to any employee benefit plan of the Company which could, singularly or in the aggregate,
have a Material Adverse Effect. Each employee benefit plan of the Company is in compliance
in all material respects with applicable law, including ERISA and the Code. The Company has
not incurred and could not reasonably be expected to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any pension plan (as defined in
ERISA). Each pension plan for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred,
whether by action or by failure to act, which could, singularly or in the aggregate, cause
the loss of such qualification.
(cc) The Company is in compliance with all foreign, federal, state and local rules,
laws and regulations relating to the use, treatment, storage and disposal of hazardous or
toxic substances or waste and protection of health and safety or the environment which are
applicable to its business (“Environmental Laws”), except where the failure to comply would
not, singularly or in the aggregate, have a Material
12
Adverse Effect. There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic or other
wastes or other hazardous substances regulated by Environmental Laws (“Hazardous
Substances”) or caused by the Company (or, to the Company’s knowledge, any other entity for
whose acts or omissions the Company is or may otherwise be liable) upon any of the property
now or previously owned or leased by the Company, or upon any other property, in violation
of any law, statute, ordinance, rule, regulation, order, judgment, decree or permit or which
would, under any law, statute, ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for any violation or
liability which would not have, singularly or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; and there has been no disposal, discharge, emission
or other release of any kind onto such property or into the environment surrounding such
property of any Hazardous Substances with respect to which the Company has knowledge, except
for any such disposal, discharge, emission, or other release of any kind which would not
have, singularly or in the aggregate with all such discharges and other releases, a Material
Adverse Effect.
(dd) The Company (i) has timely filed all necessary federal, state, local and foreign
tax returns, and all such returns were true, complete and correct, (ii) has paid all
federal, state, local and foreign taxes, assessments, governmental or other charges due and
payable for which it is liable, including, without limitation, all sales and use taxes and
all taxes which the Company is obligated to withhold from amounts owing to employees,
creditors and third parties, and (iii) does not have any tax deficiency or claims
outstanding or assessed or, to the best of its knowledge, proposed against any of them,
except those, in each of the cases described in clauses (i), (ii) and (iii) of this
paragraph (dd), that would not, singularly or in the aggregate, have a Material
Adverse Effect. The Company has not engaged in any transaction which is a corporate tax
shelter or which could be characterized as such by the Internal Revenue Service or any other
taxing authority. The Company reasonably believes that the accruals and reserves on the
books and records of the Company in respect of tax liabilities for any taxable period not
yet finally determined are adequate to meet any assessments and related liabilities for any
such period, and since December 31, 2007, the Company has not incurred any liability for
taxes other than in the ordinary course.
(ee) The Company carries, or is covered by, insurance in such amounts and covering such
risks as it reasonably believes to be adequate for the conduct of its business and the value
of its properties and as it reasonably believes to be customary for companies engaged in
similar businesses in similar industries.
(ff) The Company maintains a system of internal accounting and other controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the
13
General Disclosure Package, since the end of the Company’s most recent audited fiscal
year, there has been (A) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (B) no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(gg) The minute books of the Company have been made available to the Placement Agents
and counsel for the Placement Agents, and such books (i) contain a complete summary of all
meetings and actions of the board of directors (including each board committee, with the
exception of the meetings of the Ad Hoc Committee, for which no minutes were kept) and
shareholders of the Company (or analogous governing bodies and interest holders, as
applicable), since December 2006 through the date of the latest meeting and action, and (ii)
accurately in all material respects reflect all transactions referred to in such minutes.
(hh) There is no franchise, lease, contract, agreement or document required by the
Securities Act or by the Rules and Regulations to be described in the General Disclosure
Package and in the Prospectus or a document incorporated by reference therein or to be filed
as an exhibit to the Registration Statement or a document incorporated by reference therein
which is not described or filed therein as required; and all descriptions of any such
franchises, leases, contracts, agreements or documents contained in the Registration
Statement or in a document incorporated by reference therein are accurate and complete
descriptions of such documents in all material respects. Other than as described in the
General Disclosure Package, no such franchise, lease, contract or agreement has been
suspended or terminated for convenience or default by the Company or any of the other
parties thereto, and the Company has not received notice nor does the Company have any other
knowledge of any such pending or threatened suspension or termination, except for such
pending or threatened suspensions or terminations that would not reasonably be expected to,
singularly or in the aggregate, have a Material Adverse Effect.
(ii) No relationship, direct or indirect, exists between or among the Company on the
one hand, and the directors, officers, stockholders, customers or suppliers of the Company
or any of its affiliates on the other hand, which is required to be described in the General
Disclosure Package and the Prospectus or a document incorporated by reference therein and
which is not so described, except that, on July 2, 2009, the Company entered into the
Symphony Amendment.
(jj) No person or entity has the right to require registration of shares of Common
Stock or other securities of the Company because of the filing or effectiveness of the
Registration Statement or otherwise, except for persons and entities who have expressly
waived such right in writing or who have been given timely and proper written notice and
have failed to exercise such right within the time or times required under the terms and
conditions of such right. Except as described in the General Disclosure Package, there are
no persons with registration rights or similar rights to have any securities registered by
the Company under the Securities Act.
14
(kk) The Company does not own any “margin securities” as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”), and none of the proceeds of the sale of the Units will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to purchase or carry
any margin security or for any other purpose which might cause any of the Units to be
considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal
Reserve Board.
(ll) Except for this Agreement, the Company is not a party to any contract, agreement
or understanding with any person that would give rise to a valid claim against the Company
or any Placement Agent for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Units or any transaction contemplated by this
Agreement, the Registration Statement, the General Disclosure Package or the Prospectus.
(mm) No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in either the General Disclosure Package
or the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(nn) The Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock
is registered pursuant to Section 12(b) of the Exchange Act and is listed on the Nasdaq GM,
and the Company has taken no action designed to, or reasonably likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the Nasdaq GM, nor, except as set forth in the Company’s Form 8-K filing
dated December 30, 2008, has the Company received any notification that the Commission or
FINRA is contemplating terminating such registration or listing. No consent, approval,
authorization or order of, or filing, notification or registration with, the Nasdaq GM is
required for the listing and trading of the Common Stock on the Nasdaq GM except for (i) a
Notification: Listing of Additional Shares and (ii) a Notification: Change in the Number
of Shares Outstanding.
(oo) The Company is in compliance in all material respects with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are
currently in effect.
(pp) The Company is in compliance in all material respects with all applicable
corporate governance requirements set forth in the Nasdaq Marketplace Rules that are
currently in effect.
(qq) There are no transactions, arrangements or other relationships between and/or
among the Company, any of its affiliates (as such term is defined in Rule 405 of the
Securities Act) and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that could reasonably be
15
expected to materially affect the Company’s liquidity or the availability of or requirements
for its capital resources required to be described in the General Disclosure Package and the
Prospectus or a document incorporated by reference therein which have not been described as
required.
(rr) There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to
or for the benefit of any of the officers or directors of the Company or any of their
respective family members, except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus.
(ss) The statistical and market related data included in the Registration Statement,
the General Disclosure Package and the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate.
(tt) Neither the Company nor any of its affiliates (within the meaning of FINRA Conduct
Rule 2720(b)(1)(a)) directly or indirectly controls, is controlled by, or is under common
control with, or is an associated person (within the meaning of Article I, Section 1(ee) of
the By-laws of FINRA) of, any member firm of FINRA.
(uu) No approval of the shareholders of the Company under the rules and regulations of
Nasdaq (including Rule 5635(d) of the Nasdaq Marketplace Rules) is required for the Company
to issue and deliver the Units to the Purchasers.
Any certificate signed by or on behalf of the Company and delivered to the Representative or to
counsel for the Placement Agents shall be deemed to be a representation and warranty by the Company
to the Placement Agents and the Purchasers as to the matters covered thereby.
4. The Closing. The time and date of closing and delivery of the documents required
to be delivered to the Placement Agents pursuant to Sections 5 and 7 hereof shall
be at 10:00 A.M., New York time, on July 20, 2009 (the “Closing Date”) at the office of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo P.C., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Further Agreements of the Company. The Company agrees with the Placement Agents
and the Purchasers:
(a) To prepare the Rule 462(b) Registration Statement, if necessary, in a form approved
by the Representative and file such Rule 462(b) Registration Statement with the Commission
on the date hereof; to prepare the Prospectus in a form approved by the Representative
containing information previously omitted at the time of effectiveness of the Registration
Statement in reliance on rules 430A, 430B and 430C and to file such Prospectus pursuant to
Rule 424(b) of the Rules and Regulations not later than the second business (2nd)
day following the execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A of the Rules and Regulations; to notify the
Representative immediately of the Company’s intention to file or prepare any supplement or
amendment to any Registration Statement or to the Prospectus and to make no amendment or
supplement to the Registration Statement, the
16
General Disclosure Package or to the Prospectus to which the Representative shall
reasonably object by notice to the Company after a reasonable period to review; to advise
the Representative, promptly after it receives notice thereof, of the time when any
amendment to any Registration Statement has been filed or becomes effective or any
supplement to the General Disclosure Package or the Prospectus or any amended Prospectus has
been filed and to furnish the Representative with copies thereof; to file promptly all
material required to be filed by the Company with the Commission pursuant to Rule 433(d) or
163(b)(2), as the case may be; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) of the Rules and Regulations) is required in connection with the
offering or sale of the Units; to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, of the suspension of the qualification of the Units for
offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or supplementing of
the Registration Statement, the General Disclosure Package or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus or suspending any such qualification, and promptly to use its
reasonable best efforts to obtain the withdrawal of such order.
(b) The Company represents and agrees that, unless it obtains the prior consent of the
Representative, it has not made and will not, make any offer relating to the Units that
would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and
Regulations unless the prior written consent of the Representative has been received (each,
a “Permitted Free Writing Prospectus”); provided that the prior written consent of the
Representative hereto shall be deemed to have been given in respect of the Issuer Free
Writing Prospectus[es] included in Schedule A hereto. The Company represents that
it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of the
Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record keeping and
will not take any action that would result in any Placement Agent or the Company being
required to file with the Commission pursuant to Rule 433(d) of the Rules and Regulations a
free writing prospectus prepared by or on behalf of such Placement Agent that such Placement
Agent otherwise would not have been required to file thereunder.
(c) If at any time when a Prospectus relating to the Securities is required to be delivered
under the Securities Act, any event occurs or condition exists as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
17
misleading, or the Registration Statement, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, or if for any other reason it is necessary at
any time to amend or supplement any Registration Statement or the Prospectus to comply with
the Securities Act or the Exchange Act, the Company will promptly notify the Representative,
and upon the Representative’s request, the Company will promptly prepare and file with the
Commission, at the Company’s expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement or omission or
effects such compliance and will deliver to the Placement Agents, without charge, such
number of copies thereof as the Placement Agents may reasonably request. The Company
consents to the use of the Prospectus or any amendment or supplement thereto by the
Placement Agents.
(d) If the General Disclosure Package is being used to solicit offers to buy the Units
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Representative, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, or to make the statements therein not
conflict with the information contained or incorporated by reference in the Registration
Statement then on file and not superseded or modified, or if it is necessary at any time to
amend or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and furnish to the
Placement Agents and any dealers an appropriate amendment or supplement to the General
Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General Disclosure Package as so amended or supplemented will not, in the light
of the circumstances then prevailing, be misleading or conflict with the Registration
Statement then on file, or so that the General Disclosure Package will comply with law.
(e) If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or will conflict with the information contained in the Registration
Statement, Pricing Prospectus or Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof and not
superseded or modified or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading, the Company has promptly notified or will promptly notify
the Representative so that any use of the Issuer Free Writing Prospectus may cease until it
is amended or supplemented and has promptly amended or will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with,
written information furnished to the Company by any Placement Agent specifically for
inclusion therein,
18
which information the parties hereto agree is limited to the Placement Agents’
Information (as defined in Section 17).
(f) To the extent not available on the Commission’s ▇▇▇▇▇ system or any successor
system, to furnish promptly to the Placement Agents and to counsel for the Placement Agents
a signed copy of the Registration Statement as originally filed with the Commission, and of
each amendment thereto filed with the Commission, including all consents and exhibits filed
therewith.
(g) To the extent not available on the Commission’s ▇▇▇▇▇ system or any successor
system, to deliver promptly to the Representative in New York City such number of the
following documents as the Representative shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission (in each case excluding
exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer Free Writing Prospectus, (iv)
the Prospectus (the delivery of the documents referred to in clauses (i), (ii), (iii) and
(iv) of this paragraph (g) to be made not later than 10:00 A.M., New York time, on
the business day following the execution and delivery of this Agreement), (v) conformed
copies of any amendment to the Registration Statement (excluding exhibits), (vi) any
amendment or supplement to the General Disclosure Package or the Prospectus (the delivery of
the documents referred to in clauses (v) and (vi) of this paragraph (g) to be made
not later than 10:00 A.M., New York City time, on the business day following the date of
such amendment or supplement) and (vii) any document incorporated by reference in the
General Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery of
the documents referred to in clause (vi) of this paragraph (g) to be made not later
than 10:00 A.M., New York City time, on the business day following the date of such
document).
(h) To make generally available to its shareholders as soon as practicable, but in any
event not later than eighteen (18) months after the effective date of each Registration
Statement (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement of
the Company (which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Company, Rule 158); and to
furnish to its shareholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, shareholders’ equity and
cash flows of the Company certified by independent public accountants) and as soon as
possible after each of the first three fiscal quarters of each fiscal year (beginning with
the first fiscal quarter after the effective date of such Registration Statement),
consolidated summary financial information of the Company for such quarter in reasonable
detail.
(i) To take promptly from time to time such actions as the Representative may
reasonably request to qualify the Securities for offering and sale under the securities or Blue
Sky laws of such jurisdictions (domestic or foreign) as the Representative may designate and
to continue such qualifications in effect, and to comply with such laws, for so long as
required to permit the offer and sale of Units in such jurisdictions; provided that the
Company shall not be obligated to qualify as a foreign corporation in any
19
jurisdiction in which it is not so qualified or to file a general consent to service of
process in any jurisdiction.
(j) To the extent not available on the Commission’s ▇▇▇▇▇ system or any successor
system, upon request, during the period of two (2) years from the date hereof, to deliver to
the Placement Agents, (i) upon request, copies of all reports or other communications
furnished to shareholders, and (ii) upon request, copies of any reports and financial
statements furnished or filed with the Commission or any national securities exchange or
automatic quotation system on which the Company’s securities are listed or quoted.
(k) That the Company will not, for a period of ninety (90) days from the date of the
Prospectus, (the “Lock-Up Period”) without the prior written consent of the Representative,
directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (provided that, after sixty (60) days from the date of the
Prospectus, the Company shall be permitted, without such prior written consent, to issue up
to 5% of its then outstanding shares of Common Stock pursuant to strategic or licensing
transactions that do not have capital-raising as their primary purpose), other than (i) the
Company’s sale of the Units hereunder, (ii) the issuance of restricted Common Stock or
options to acquire Common Stock pursuant to the Company’s employee benefit plans, qualified
stock option plans or other employee compensation plans as such plans are in existence on
the date hereof and described in the Prospectus and (iii) the issuance of Common Stock
pursuant to the valid exercises of options, warrants or rights outstanding on the date
hereof. The Company will cause each executive officer and director listed in Schedule
B to furnish to the Representative, prior to the Closing Date, a letter, substantially
in the form of Exhibit C hereto, pursuant to which each such person shall agree,
among other things, not to directly or indirectly offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, not to engage in any swap
or other agreement or arrangement that transfers, in whole or in part, directly or
indirectly, the economic risk of ownership of Common Stock or any such securities and not to
engage in any short selling of any Common Stock or any such securities, during the Lock-Up
Period, without the prior written consent of the Representative. The Company also agrees
that during such period, the Company will not file any registration statement, preliminary
prospectus or prospectus, or any amendment or supplement thereto, under the Securities Act
for any such transaction or which registers, or offers for sale, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, except for a
registration statement on Form S-8 relating to employee benefit plans, except for (1) a
post-effective amendment to the Registration Statement or Form S-1 (Reg. No. 333-150595) to
be filed in connection with the Company’s Committed Equity Financing Facility with
Kingsbridge Capital Limited and (2) a Registration Statement on Form S-3 to register for
resale the shares of Common Stock issuable to Symphony ViDA Holdings LLC pursuant to the
Symphony Amendment, provided, however, that any sales of any securities under (1) and (2)
are subject to this Lock-up. The Company hereby agrees that (i) if it issues an earnings
release or material news, or if a material event relating to the
20
Company occurs, during the last seventeen (17) days of the Lock-Up Period, or (ii) if
prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the sixteen (16)-day period beginning on the last day of the Lock-Up
Period, the restrictions imposed by this paragraph (k) or the letter shall continue
to apply until the expiration of the eighteen (18)-day period beginning on the date of
issuance of the earnings release or the occurrence of the material news or material event.
(l) To supply the Representative with copies of all correspondence to and from, and all
documents issued to and by, the Commission in connection with the registration of the Units
under the Securities Act or the Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto or document incorporated by reference
therein.
(m) Prior to the Closing Date, to furnish to the Representative, as soon as they have
been prepared, copies of any unaudited interim consolidated financial statements of the
Company for any periods subsequent to the periods covered by the financial statements
appearing in or incorporated by reference into the Registration Statement and the Prospectus
(if any).
(n) Prior to the Closing Date, not to issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Representative is
notified), without the prior written consent of the Representative, which shall not be
unreasonably withheld or delayed, unless in the judgment of the Company and its counsel, and
after notification to the Representative, such press release or communication is required by
law.
(o) Until the Representative shall have notified the Company of the completion of the
offering of the Units, that the Company will not, and will cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either alone or with one or more
other persons, bid for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Units, or attempt to induce any person to purchase
any Units; and not to, and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or of raising the price
of the Units.
(p) Not to take any action prior to the Closing Date which would require the Prospectus
to be amended or supplemented pursuant to Section 5.
(q) To at all times comply in all material respects with all applicable provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act in effect from time to time.
(r) To apply the net proceeds from the sale of the Units as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus under the heading
“Use of Proceeds.”
21
(s) To use its reasonable best efforts to list, subject to notice of issuance, the
Common Stock on the Nasdaq GM.
(t) To use its reasonable best efforts to assist the Representative with any filings
with FINRA and obtaining clearance from FINRA as to the amount of compensation allowable or
payable to the Placement Agents.
(u) To use its reasonable best efforts to do and perform all things required to be done
or performed under this Agreement by the Company prior to the Closing Date and to satisfy
all conditions precedent to the delivery of the Units.
6. Payment of Expenses. The Company agrees to pay, or reimburse if paid by the
Placement Agents, whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Units to the Purchasers and any taxes payable in that connection; (b) the costs
incident to the registration of the Units under the Securities Act; (c) the costs incident to the
preparation, printing and distribution of the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the
Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by
reference therein and the costs of printing, reproducing and distributing any transaction document
by mail, telex or other means of communications; (d) the reasonable, documented fees and expenses
(including related reasonable, documented fees and expenses of counsel for the Placement Agents)
incurred in connection with securing any required review by FINRA of the terms of the sale of the
Units and any filings made with FINRA; (e) any applicable listing, quotation or other fees; (f) the
fees and expenses (including related reasonable, documented fees and expenses of counsel to the
Placement Agents) of qualifying the Units under the securities laws of the several jurisdictions as
provided in Section 5(i) and of preparing, printing and distributing wrappers, Blue Sky
Memoranda and Legal Investment Surveys; (g) the cost of preparing and printing stock certificates;
(h) all fees and expenses of the registrar and transfer agent of the respective Securities, (i) the reasonable and
documented fees, disbursements and expenses of counsel to the Placement Agents not to exceed, along
with any fees and expenses incurred in connection with (d) above, by counsel to the Placement
Agents, $100,000 and (j) all other costs and expenses incident to the offering of the Units or
the performance of the obligations of the Company under this Agreement (including, without
limitation, the reasonable documented fees and expenses of the Company’s counsel and the Company’s
independent accountants and the travel and the other reasonable, documents expenses incurred by
Company and the Placement Agents’ personnel in connection with any “road show” including, without
limitation, any expenses advanced by the Placement Agents on the Company’s behalf (which will be
promptly reimbursed)); provided, however, except as otherwise provided in this Section 6
and in Sections 8 and 10, the Placement Agents shall pay their own costs and
expenses.
7. Conditions to the Obligations of the Placement Agents and the Purchasers, and the Sale
of the Units. The respective obligations of the Placement Agents hereunder and the Purchasers
under the Subscription Agreements, and the Closing of the sale of the Securities, are subject to the
accuracy, when made and as of the Applicable Time and on the Closing Date, of the representations
and warranties of the Company contained herein, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions
22
hereof, to the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or any
part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof
shall have been issued and no proceedings for that purpose or pursuant to Section 8A under
the Securities Act shall have been initiated or threatened by the Commission, and all
requests for additional information on the part of the Commission (to be included or
incorporated by reference in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the Representative; the Rule
462(b) Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and the
Prospectus shall have been filed with the Commission within the applicable time period
prescribed for such filing by, and in compliance with, the Rules and Regulations and in
accordance with Section 5(a), and the Rule 462(b) Registration Statement, if any,
shall have become effective immediately upon its filing with the Commission; and FINRA shall
have raised no objection to the fairness and reasonableness of the terms of this Agreement
or the transactions contemplated hereby.
(b) The Placement Agents shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of counsel for the
Placement Agents, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the General Disclosure Package, any Issuer Free
Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an
untrue statement of fact which, in the opinion of such counsel, is material or omits to
state any fact which, in the opinion of such counsel, is material and is necessary in order
to make the statements, in the light of the circumstances in which they were made, not
misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of each of this Agreement, the Subscription Agreements, the Escrow
Agreement, the Securities, the Registration Statement, the General Disclosure Package, each
Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Placement Agents, and the Company
shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. shall have furnished to the
Representative such counsel’s written opinion, as corporate counsel to the Company,
addressed to the Placement Agents dated the Closing Date, in the form attached hereto as
Exhibit D.
Such counsel shall also have furnished to the Representative a written statement,
addressed to the Placement Agents and dated the Closing Date, in form and substance
23
satisfactory to the Representative, to the effect that (x) such counsel has acted as
counsel to the Company in connection with the preparation of the Registration Statement, the
General Disclosure Package and the Prospectus, and each amendment or supplement thereto made
by the Company prior to the Closing Date, (y) based on such counsel’s examination of the
Registration Statement, the General Disclosure Package and the Prospectus, and each
amendment or supplement thereto made by the Company prior to the Closing Date and the
documents incorporated by reference in the General Disclosure Package or the Prospectus and
any further amendment or supplement to any such incorporated document made by the Company
prior to the Closing Date, and such counsel’s investigations made in connection with the
preparation of the Registration Statement, the General Disclosure Package and the
Prospectus, and each amendment or supplement thereto made by the Company prior to the
Closing Date, and conferences with certain officers and employees of and with auditors for
the Company as well as the Placement Agents and counsel to the Placement Agents, nothing has
come to such counsel’s attention that has led it to believe that (I) the Registration
Statement or any amendment thereto as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the Prospectus or
any amendment or supplement thereto, at the respective date thereof or at the Closing Date,
contained or contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, the documents included in the General Disclosure
Package, all considered together, as of the Applicable Time, contained or contains any
untrue statement of a material fact or omits to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or (II) any document incorporated by reference in the Prospectus or
any further amendment or supplement to any such incorporated document made by the Company
prior to the Closing Date, when they became effective or were filed with the Commission, as
the case may be, contained, in the case of a registration statement which became effective
under the Securities Act, any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the statements
therein not misleading, or, in the case of other documents which were filed under the
Exchange Act with the Commission, any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; it being understood that such
counsel need express no opinion as to the financial statements, schedules or other
financial, statistical or accounting data contained in the Registration Statement, the
General Disclosure Package, or the Prospectus, or an incorporated document. The foregoing
statement may be qualified by a statement to the effect that such counsel has not
independently verified the accuracy, completeness or fairness of the statements contained in
the Registration Statement, the General Disclosure Package or the Prospectus and is not
passing upon and takes no responsibility therefor except to the extent set forth in the
opinion described above.
(e) ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have furnished to the Representative such counsel’s written
opinion, as intellectual property counsel to the Company, addressed to the Placement Agents
dated the Closing Date, in the form attached hereto as Exhibit E.
24
(f) The Representative shall have received from Proskauer Rose LLP, counsel for the
Placement Agents, such opinion or opinions, dated the Closing Date, with respect to such
matters as the Representative may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, the Representative shall have
received from Ernst & Young LLP, a letter, addressed to the Placement Agents, executed and
dated such date, in form and substance satisfactory to the Representative (i) confirming
that they are an independent registered accounting firm with respect to the Company within
the meaning of the Securities Act and the Rules and Regulations and PCAOB and (ii) stating
the conclusions and findings of such firm, of the type ordinarily included in accountants’
“comfort letters” to underwriters, with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus.
(h) On the effective date of any post-effective amendment to any Registration Statement
that is filed prior to the Closing Date and on the Closing Date, the Representative shall
have received a letter (the “Bring-Down Letter”) from Ernst & Young LLP, addressed to the
Placement Agents and dated the Closing Date confirming, as of the date of the Bring-Down
Letter (or, with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the General Disclosure Package
and the Prospectus, as the case may be, as of a date not more than three (3) business days
prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of
the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect
to the financial information and other matters covered by its letter delivered to the
Representative concurrently with the execution of this Agreement pursuant to paragraph (g)
of this Section 7.
(i) The Company shall have furnished to the Placement Agents and the Purchasers a
certificate, dated the Closing Date, of its Chief Executive Officer, its President or a Vice
President and its Chief Financial Officer stating that (i) such officers have carefully
examined the Registration Statement, the General Disclosure Package, any Permitted Free
Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and
each amendment thereto, at the Applicable Time and as of the date of this Agreement and as
of the Closing Date did not include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, and the General Disclosure Package, as of the Applicable Time and as
of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the
Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective
date thereof and as of the Closing Date, did not include any untrue statement of a material
fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not misleading, (ii)
since the effective date of the Initial Registration Statement, no event has occurred which should
have been set forth in a supplement or amendment to the Registration Statement, the General
Disclosure Package or the Prospectus that was not so set forth, (iii) to the best of their
knowledge after
25
reasonable investigation, as of the Closing Date, the representations and warranties of
the Company in this Agreement are true and correct and the Company has complied in all
material respects with all agreements and satisfied in all material respects all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iv)
there has not been, subsequent to the date of the most recent audited financial statements
included or incorporated by reference in the General Disclosure Package, any material
adverse change in the financial position or results of operations of the Company, or any
change or development that, singularly or in the aggregate, would involve a material adverse
change or a prospective material adverse change, in or affecting the condition (financial or
otherwise), results of operations, business, assets or prospects of the Company, except as
set forth in the Prospectus.
(j) Since the date of the latest audited financial statements included in the General
Disclosure Package or incorporated by reference in the General Disclosure Package as of the
date hereof, (i) the Company shall not have sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than
as set forth in the General Disclosure Package, and (ii) there shall not have been any
change in the capital stock (other than the issuance of Common Stock pursuant to the
exercise of stock options under the Company’s equity compensation plans) or long-term debt
of the Company, or any change, or any development involving a prospective change, in or
affecting the business, general affairs, management, financial position, stockholders’
equity or results of operations of the Company, otherwise than as set forth in the General
Disclosure Package, the effect of which, in any such case described in clause (i) or (ii) of
this paragraph (j), is, in the judgment of the Representative, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the Units on
the terms and in the manner contemplated in the General Disclosure Package.
(k) No action shall have been taken and no law, statute, rule, regulation or order
shall have been enacted, adopted or issued by any governmental agency or body which would
prevent the issuance or sale of the Units or materially and adversely affect or which is, as
of Closing Date, reasonably expected to materially and adversely affect, the business or
operations of the Company; and no injunction, restraining order or order of any other nature
by any federal or state court of competent jurisdiction shall have been issued which would
prevent the issuance or sale of the Units or materially and adversely affect, or which is,
as of Closing Date, reasonably expected to materially and adversely affect the business or
operations of the Company.
(l) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange, Nasdaq GM or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or materially limited, or minimum or maximum prices or maximum
range for prices shall have been established on any such exchange or such market by the
Commission, by such exchange or market or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking
26
moratorium shall have been declared by Federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement or clearance services
in the United States, (iii) the United States shall have become engaged in hostilities, or
the subject of an act of terrorism, or there shall have been an outbreak of or escalation in
hostilities involving the United States, or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of the Representative, impracticable or inadvisable to
proceed with the sale or delivery of the Units on the terms and in the manner contemplated
in the General Disclosure Package and the Prospectus.
(m) The Company shall have filed such applications as are necessary to include the
Common Stock on the Nasdaq GM and satisfactory evidence of such action shall have been
provided to the Representative.
(n) The Placement Agents shall have received the written agreements, substantially in
the form of Exhibit C hereto, of the executive officers and directors of the Company
listed in Schedule B to this Agreement.
(o) The Company shall have entered into Subscription Agreements with each of the
Purchasers and such agreements shall be in full force and effect.
(p) The Company shall have entered into the Escrow Agreement and such agreement shall
be in full force and effect.
(q) The Placement Agents shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Placement Agents as described in the Pricing
Prospectus.
(r) Prior to the Closing Date, the Company shall have furnished to the Placement Agents
such further information, opinions, certificates, letters or documents as the Representative
shall have reasonably requested.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agents.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Placement Agent, each of its
affiliates and each of its and their respective directors, officers, members, employees,
representatives and agents (including, without limitation Lazard Frères & Co. LLC, (which
will provide services to LCM) and its affiliates, and each of its and their respective
directors, officers, members, employees, representatives and agents and each person, if any,
who controls Lazard Frères & Co. LLC within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and each person, if any, who controls such Placement
Agent within the meaning of Section 15 of the Securities Act
27
or Section 20 of the Exchange Act (collectively the “Placement Agent Indemnified
Parties,” and each a “Placement Agent Indemnified Party”) against any loss, claim, damage,
expense or liability whatsoever (or any action, investigation or proceeding in respect
thereof), joint or several, to which such Placement Agent Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
expense, liability, action, investigation or proceeding arises out of or is based upon (A)
any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed
or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any
Registration Statement or the Prospectus, or in any amendment or supplement thereto or
document incorporated by reference therein, or (B) the omission or alleged omission to
state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, a material fact required to be stated
therein or necessary to make the statements therein not misleading (C) any breach of the
representations and warranties of the Company contained herein or failure of the Company to
perform its obligations hereunder or pursuant to any law, any act or failure to act, or any
alleged act or failure to act, by any Placement Agent in connection with, or relating in any
manner to, the Units, the Escrow Agreement or the Offering, and which is included as part of
or referred to in any loss, claim, damage, expense, liability, action, investigation or
proceeding arising out of or based upon matters covered by subclause (A), (B) or (C) above
of this Section 8(a) (provided that the Company shall not be liable in the case of
any matter covered by this subclause (C) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage, expense or
liability resulted directly from any such act, or failure to act, undertaken or omitted to
be taken by any Placement Agent through its gross negligence or willful misconduct), and
shall reimburse the Placement Agent Indemnified Party promptly upon demand for any
documented legal fees or other expenses reasonably incurred and documented by that Placement
Agent Indemnified Party in connection with investigating, or preparing to defend, or
defending against, or appearing as a third party witness in respect of, or otherwise
incurred in connection with, any such loss, claim, damage, expense, liability, action,
investigation or proceeding, as such fees and expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such loss, claim,
damage, expense or liability arises out of or is based upon an untrue statement or alleged
untrue statement in, or omission or alleged omission from any Preliminary Prospectus, any
Registration Statement or the Prospectus, or any such amendment or supplement thereto, or
any Issuer Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by the Representative by or on behalf of any Placement
Agent specifically for use therein, which information the parties hereto agree is limited to
the Placement Agents’ Information (as defined in Section 17). This indemnity
agreement is not exclusive and will be in addition to any liability, which the Company might
otherwise have and shall not limit any rights or remedies which may otherwise be available
at law or in equity to each Placement Agent Indemnified Party.
28
(b) Each Placement Agent, severally and not jointly, shall indemnify and hold harmless
the Company and its directors, its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties” and
each a “Company Indemnified Party”) against any loss, claim, damage, expense or liability
whatsoever (or any action, investigation or proceeding in respect thereof), joint or
several, to which such Company Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, expense, liability, action,
investigation or proceeding arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto, a material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Representative by or on
behalf of any Placement Agent specifically for use therein, which information the parties
hereto agree is limited to the Placement Agents’ Information (as defined in Section
17), and shall reimburse the Company for any documented legal fees or other expenses
reasonably incurred by such party in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with any such loss,
claim, damage, liability, action, investigation or proceeding, as such fees and expenses are
incurred. Notwithstanding the provisions of this Section 8(b), in no event shall
any indemnity by any Placement Agent under this Section 8(b) exceed the total
compensation received by such Placement Agent in accordance with Section 2.5.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
such indemnifying party in writing of the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify an
indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
of such action with counsel reasonably satisfactory to the indemnified party (which counsel
shall not, except with the written consent of the indemnified party, be counsel to the
indemnifying party). After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such action, except as provided
29
herein, the indemnifying party shall not be liable to the indemnified party under
Section 8 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense of such action other than reasonable costs of
investigation; provided, however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense of such action but the
reasonable, documented fees and expenses of such counsel (other than reasonable costs of
investigation) shall be at the expense of such indemnified party unless (i) the employment
thereof has been specifically authorized in writing by the Company in the case of a claim
for indemnification under Section 8(a) or Section 2.6 or LCM in the case of
a claim for indemnification under Section 8(b), (ii) such indemnified party shall
have been advised by its counsel that there may be one or more legal defenses available to
it which are different from or additional to those available to the indemnifying party, or
(iii) the indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable period of time
after notice of the commencement of the action or the indemnifying party does not diligently
defend the action after assumption of the defense, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the right to assume
the defense of (or, in the case of a failure to diligently defend the action after
assumption of the defense, to continue to defend) such action on behalf of such indemnified
party and the indemnifying party shall be responsible for legal or other expenses
subsequently incurred by such indemnified party in connection with the defense of such
action; provided, however, that the indemnifying party shall not, in connection with any one
such action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be liable for the
reasonable documented fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties (in addition to any local counsel), which firm shall
be designated in writing by LCM if the indemnified parties under this Section 8
consist of any Placement Agent Indemnified Party or by the Company if the indemnified
parties under this Section 8 consist of any Company Indemnified Parties. Subject to
this Section 8(c), the amount payable by an indemnifying party under Section
8 shall include, but not be limited to, (x) reasonable, documented legal fees and
expenses of counsel to the indemnified party and any other expenses in investigating, or
preparing to defend or defending against, or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any action, investigation, proceeding or
claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of judgment with respect to any pending or threatened
action or any claim whatsoever, in respect of which indemnification or contribution could be
sought under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party in form and substance reasonably
satisfactory to such indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. Subject to the provisions of the
following sentence, no indemnifying party shall be liable for settlement of any pending or
threatened action or
30
any claim whatsoever that is effected without its written consent (which consent
shall not be unreasonably withheld or delayed), but if settled with its written consent, if
its consent has been unreasonably withheld or delayed or if there be a judgment for the
plaintiff in any such matter, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such settlement or
judgment. In addition, if at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated herein effected without its written consent if (i) such settlement is entered
into more than forty-five (45) days after receipt by such indemnifying party of the request
for reimbursement, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least thirty (30) days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or Section
8(b), then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid, payable or otherwise incurred by such indemnified
party as a result of such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof), as incurred, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on the one
hand and the Placement Agents on the other hand from the offering of the Units, or (ii) if
the allocation provided by clause (i) of this Section 8(d) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) of this Section 8(d) but also the relative fault
of the Company on the one hand and the Placement Agents on the other with respect to the
statements, omissions, acts or failures to act which resulted in such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in respect thereof) as well
as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Placement Agents on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the offering of
the Units purchased under this Agreement (before deducting expenses) received by the Company
bear to the total Placement Fee received by the Placement Agents in connection with the
Offering, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Placement Agents on the other shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the Placement Agents on
the other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement, omission, act or failure to act;
provided that the parties hereto agree that the written information furnished to the Company
by the Representative by and on behalf of the Placement Agent for use in any Preliminary
Prospectus, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto, consists solely of the Placement Agents’ Information as defined in Section
17. The Company and the Placement Agents agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were to be
determined
31
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage, expense, liability, action,
investigation or proceeding referred to above in this Section 8(d) shall be deemed
to include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating, preparing to
defend or defending against or appearing as a third party witness in respect of, or
otherwise incurred in connection with, any such loss, claim, damage, expense, liability,
action, investigation or proceeding. Notwithstanding the provisions of this Section
8(d), no Placement Agent shall be required to contribute any amount in excess of the
total compensation received by such Placement Agent in accordance with Section 2.5
less the amount of any damages which such Placement Agent has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement, omission or alleged
omission, act or alleged act or failure to act or alleged failure to act. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Placement Agents’ obligations to contribute as provided in this
Section 8(d) are several in proportion to the amount of the Placement Fee received
by each of them and not joint.
9. Termination. The obligations of the Placement Agents and the Purchasers
hereunder and under the Subscription Agreements may be terminated by the Representative, in its
absolute discretion by notice given to the Company prior to delivery of and payment for the Units
if, prior to that time, any of the events described in Sections 7(j), 7(k) and
7(l) have occurred or if the Purchasers shall decline to purchase the Units for any reason
permitted under this Agreement or the Subscription Agreements.
10. Reimbursement of Placement Agents’ Expenses. Notwithstanding anything to
the contrary in this Agreement, if (a) this Agreement shall have been terminated pursuant to
Section 9, (b) the Company shall fail to tender the Units for delivery to the Purchasers
for any reason not permitted under this Agreement, (c) the Purchasers shall decline to purchase the
Units for any reason permitted under this Agreement or (d) the sale of the Units is not consummated
because any condition to the obligations of the Purchasers or the Placement Agents set forth herein
is not satisfied or because of the refusal, inability or failure on the part of the Company to
perform any agreement herein or to satisfy any condition or to comply with the provisions hereof,
then in addition to the payment of amounts in accordance with Section 6, the Company shall
reimburse the Placement Agents for the reasonable, documented fees and expenses of the Placement
Agents’ counsel and for such other accountable out-of-pocket expenses as shall have been reasonably
incurred by them in connection with this Agreement and the proposed purchase of the Units, and upon
demand the Company shall pay the full amount thereof to the Placement Agents.
11. Authority of the representative. ▇▇▇▇▇▇▇▇ consents and agrees
that LCM will act as Representative of the Placement Agents under this Agreement and with respect
to the sale of the Units. Accordingly, ▇▇▇▇▇▇▇▇ authorizes LCM to manage the Offering and the sale
of the Units and to take such action in connection therewith as LCM in its sole discretion deems
appropriate or desirable, consistent with the provisions of each Agreement Among Underwriters
32
previously entered into between LCM and ▇▇▇▇▇▇▇▇, respectively, taking into account that the
Offering of the Units will be in the form of a best efforts placement and not a firm commitment
underwriting. ▇▇▇▇▇▇▇▇ agrees to comply with such Agreement Among Underwriters and that any action
taken under this Agreement by the Representative shall be binding upon all of the Placement Agents.
12. Absence of Fiduciary Relationship. The Company acknowledges and agrees
that:
(a) the Placement Agents’ responsibility to the Company is solely contractual in
nature, the Placement Agents have been retained solely to act as placement agents in
connection with the Offering and no fiduciary, advisory or agency relationship between the
Company and the Placement Agents has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Placement Agents or Lazard
Frères & Co. LLC have advised or are advising the Company on other matters;
(b) the price of the Units set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Placement Agents, and the
Company is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Placement Agents and Lazard Frères & Co. LLC and their
affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Placement Agent have no obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary, advisory or
agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it may have against
the Placement Agents for breach of fiduciary duty or alleged breach of fiduciary duty and
agrees that the Placement Agents shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including stockholders, employees or
creditors of the Company.
13. Successors; Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Placement Agents, the Company, and their
respective successors and assigns. This Agreement shall also inure to the benefit of Lazard Frères
& Co. LLC, the Purchasers, and each of their respective successors and assigns, which shall be
third party beneficiaries hereof. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, other than the persons mentioned in the preceding sentences,
any legal or equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions hereof being intended
to be and being for the sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements
and indemnities of the Company contained in this Agreement shall also be for the benefit of
the
33
Placement Agent Indemnified Parties and the indemnities of each Placement Agent shall be for
the benefit of the Company Indemnified Parties. It is understood that the Placement Agents’
responsibility to the Company is solely contractual in nature and the Placement Agents do not owe
the Company, or any other party, any fiduciary duty as a result of this Agreement.
14. Survival of Indemnities, Representations, Warranties, etc. The
respective indemnities, covenants, agreements, representations, warranties and other statements of
the Company and the Placement Agents, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Placement Agents, the Company, the Purchasers or any person controlling
any of them and shall survive delivery of and payment for the Units. Notwithstanding any
termination of this Agreement, including without limitation any termination pursuant to
Sections 9 or 10, the indemnity and contribution agreements contained in
Section 8 and the covenants, representations, warranties set forth in this Agreement shall
not terminate and shall remain in full force and effect at all times.
15. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Placement Agents, shall be delivered or sent by mail, telex, facsimile
transmission or email to Lazard Capital Markets LLC, Attention: General Counsel, Fax:
▇▇▇-▇▇▇-▇▇▇▇ and to ▇▇▇▇▇▇▇▇ Curhan Ford & Co., c/o Lazard Capital Markets LLC, Attention:
General Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇; and
(b) if to the Company, shall be delivered or sent by mail, telex, facsimile
transmission or email to OXiGENE, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇; with a copy to Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
provided, however, that any notice to any Placement Agent pursuant to Section 8 shall be
delivered or sent by mail, telex or facsimile transmission to such Placement Agent at its address
set forth in its acceptance telex to the Placement Agents, which address will be supplied to any
other party hereto by the Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof, except that any such statement,
request, notice or agreement delivered or sent by email shall take effect at the time of
confirmation of receipt thereof by the recipient thereof.
16. Definition of Certain Terms. For purposes of this Agreement, (a)
“business day” means any day on which the New York Stock Exchange, Inc. is open for trading and (b)
“subsidiary” has the meaning set forth in Rule 405 of the Rules and Regulations.
17. Governing Law, Agent for Service and Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of New York, including
without limitation Section 5-1401 of the New York General Obligations Law. No legal proceeding may
be commenced, prosecuted or continued in any court other than the courts
of the State of New York located in the City and County of New York or in the United States
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for the Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Company and the Placement Agents each hereby consent to the
jurisdiction of such courts and personal service with respect thereto. The Company and the
Placement Agents each hereby consent to personal jurisdiction, service and venue in any court in
which any legal proceeding arising out of or in any way relating to this Agreement is brought by
any third party against the Company or the Placement Agents. The Company and the Placement Agents
each hereby waive all right to trial by jury in any legal proceeding (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees
that a final judgment in any such legal proceeding brought in any such court shall be conclusive
and binding upon the Company and the Placement Agents and may be enforced in any other courts in
the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
18. Placement Agents’ Information. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Placement Agents’ Information consists solely of the
following information in the Prospectus: (i) the last paragraph on the front cover page concerning
the terms of the offering by the Placement Agents; and (ii) the statements concerning the Placement
Agents contained in the first paragraph under the heading “Plan of Distribution.”
19. Partial Unenforceability. The invalidity or unenforceability of any
section, paragraph, clause or provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph, clause or provision hereof. If any section,
paragraph, clause or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
20. General. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof. In this Agreement, the
masculine, feminine and neuter genders and the singular and the plural include one another. The
section headings in this Agreement are for the convenience of the parties only and will not affect
the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the
Company and the Placement Agents.
21. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument and such signatures may be delivered by facsimile.
35
If the foregoing is in accordance with your understanding of the agreement between the Company
and the Placement Agents, kindly indicate your acceptance in the space provided for that purpose
below.
| Very truly yours, OXiGENE, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | CEO | |||
Accepted as of the date
first above written:
first above written:
| LAZARD CAPITAL MARKETS LLC |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | |||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. | ||||
| Title: Managing Director | ||||
| ▇▇▇▇▇▇▇▇ CURHAN FORD & CO. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
36
SCHEDULE A
General Use Free Writing Prospectuses
None.
SCHEDULE B
List of officers and directors subject to Section 5
Directors
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Alastair ▇.▇. ▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Alastair ▇.▇. ▇▇▇▇, M.D.
Officers
▇▇▇ ▇▇▇▇▇▇▇, Ph.D.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D., Ph.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D., Ph.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A
[Form of Subscription Agreement]
EXHIBIT B-1
[Form
of Series I Warrant]
EXHIBIT
B-2
[Form
of Series II Warrant]
EXHIBIT C
[Form of Lock Up Agreement]
EXHIBIT D
[Form of Corporate Opinion]
EXHIBIT E
[Form of IP Opinion]