FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 7, 2009
Electro-Optical Sciences, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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000-51481
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13-3986004 |
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(State or other jurisdiction (C
of incorporation)
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ommission (
File Number)
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IRS Employer
Identification No.) |
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3 West Main Street, Suite 201,
Irvington, New York
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10533 |
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(Address of principal executive offices)
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(Zip Code) |
Registrants telephone number, including area code (914) 591-3783
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instructions
A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 |
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Entry into a Material Definitive Agreement |
On May 7, 2009, Electro-Optical Sciences, Inc. (the Company) entered into a Committed Equity
Financing Facility arrangement, or CEFF, with Kingsbridge Capital Limited (Kingsbridge) in which
Kingsbridge has committed to purchase, subject to certain conditions and at the Companys sole
discretion, up to the lesser of $45 million or 19.99% of the Companys outstanding shares at the
subscription date, through May 7, 2012. Under the terms of the CEFF, the Company is not obligated
to utilize any of the $45 million available under the CEFF and there are no minimum commitments or
minimum use penalties. The Company has access, at its discretion, to the funds through the sale of
newly-issued restricted shares of the Companys common stock. The funds that can be raised under
the CEFF over the three year term will depend on the then-current price for the Companys common
stock and the number of shares actually sold. The Company may access capital under the CEFF by
providing Kingsbridge with common stock at discounts ranging from 6 to 10 percent of the Volume
Weighted Average Price (VWAP); the discount depending on the VWAP of the Companys common stock
during the applicable pricing period. In connection with the CEFF, the Company issued a warrant to
Kingsbridge to purchase 200,000 shares of the Companys common stock at an exercise price of $11.35
per share (150% of the 5-day average closing bid price preceding the subscription date). The
warrant will become exercisable on November 7, 2009, the six-month anniversary of the date of the
Purchase Agreement (May 7, 2009), and will remain exercisable, subject to certain exceptions, for a
period of five years thereafter. Pursuant to the CEFF and as a condition to the stock issuance, the
Company is obligated to have effective a registration statement with respect to the resale of
shares issued pursuant to the CEFF and underlying the warrant. Legal fees of up to $75,000 and
broker fees of $75,000 will be paid under this agreement. In addition, the Company must pay
Kingsbridge $12,500 per quarter for each quarter it does not make a drawdown of at least 2% of the
Companys market capitalization.
The Company will file a resale registration statement with the Securities and Exchange Commission
on Form S-3 to register up to approximately 3,527,000 of its authorized common shares to be
available for purchase under this financing arrangement and for issuance upon exercise of the
warrant issued to Kingsbridge.
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Item 3.02 |
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Unregistered Sales of Equity Securities |
The Company relied on the exemption from registration contained in Section 4(2) of the Securities
Act, and Rule 506 of Regulation D, in connection with obtaining Kingsbridges commitment under the
CEFF and for the issuance of the warrant to Kingsbridge in consideration of such commitment. The
other information called for by this item is contained in Item 1.01, which is incorporated herein
by reference.
The warrant, the shares of common stock issuable under the CEFF and the shares issuable upon the
exercise of the warrant have not been registered under the Securities Act of 1933, as amended (the
Securities Act), and may not be offered or sold in the United States without registration or an
applicable exemption from the registration requirements of the Securities Act.
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Item 9.01 |
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Financial Statements and Exhibits |
(d) Exhibits
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EXHIBIT NO. |
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DESCRIPTION |
4.1
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Warrant dated May 7, 2009 issued by Electro-Optical Sciences, Inc. to Kingsbridge Capital Limited |
10.1
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Common Stock Purchase Agreement dated as of May 7, 2009 between Electro-Optical Sciences, Inc.
and Kingsbridge Capital Limited |
10.2
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Registration Rights Agreement dated as of May 7, 2009 between Electro-Optical Sciences, Inc. and
Kingsbridge Capital Limited |
99.1
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Press Release, dated May 8, 2009, titled Electro-Optical Sciences Secures Committed Equity
Financing Facility of $45 Million |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Electro-Optical Sciences, Inc.
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Date: May 8, 2009 |
By: |
/s/ Richard Steinhart
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Chief Financial Officer |
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(Principal Financial Officer) |
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EXHIBIT INDEX
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EXHIBIT NO. |
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DESCRIPTION |
4.1
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Warrant dated May 7, 2009 issued by Electro-Optical Sciences, Inc. to Kingsbridge Capital Limited |
10.1
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Common Stock Purchase Agreement dated as of May 7, 2009 between Electro-Optical Sciences, Inc.
and Kingsbridge Capital Limited |
10.2
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Registration Rights Agreement dated as of May 7, 2009 between Electro-Optical Sciences, Inc. and
Kingsbridge Capital Limited |
99.1
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Press Release, dated May 8, 2009, titled Electro-Optical Sciences Secures Committed Equity
Financing Facility of Up To $45 Million |
EX-4.1
Exhibit 4.1
Execution Copy
WARRANT
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY OTHER APPLICABLE SECURITIES LAWS AND
HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO A TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
May 7, 2009
Warrant to Purchase up to 200,000 shares of Common Stock of Electro-Optical Sciences, Inc.
(the Company).
In consideration for Kingsbridge Capital Limited (the Investor) agreeing to enter
into that certain Common Stock Purchase Agreement, dated as of the date hereof, between the
Investor and the Company (the Agreement), the Company hereby agrees that the Investor or
any other Warrant Holder (as defined below) is entitled, on the terms and conditions set forth
below, to purchase from the Company at any time during the Exercise Period (as defined below) up to
200,000 fully paid and non-assessable shares of common stock, par value $0.001 per share, of the
Company (the Common Stock) at the Exercise Price (as defined below), as the same may be
adjusted from time to time pursuant to Section 6 hereof. The resale of the shares of Common Stock
or other securities issuable upon exercise or exchange of this Warrant is subject to the provisions
of the Registration Rights Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings given them in the Agreement.
Section 1. Definitions.
Affiliate shall mean any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under direct or indirect common control with
any other Person. For the purposes of this definition, control, when used with respect
to any Person, means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise, and the
term controls and controlled have meanings correlative to the foregoing.
Closing Price as of any particular day shall mean the closing price per share of the
Common Stock as reported by the Principal Market on such day.
Exercise Period shall mean that period beginning six months after the date of this
Warrant and continuing until the earlier of (i) the expiration of the five-year period thereafter,
or (ii) a Funding Default, subject in each case to earlier termination in accordance with Section 6
hereof.
Exercise Price as of the date hereof shall mean $11.35 per Share, as the same may be
adjusted in accordance with the terms hereof.
Funding Default shall mean a failure by Investor to accept a Draw Down Notice made
by the Company and to acquire and pay for the Shares in accordance therewith within three (3)
Trading Days following the delivery of such Shares to the Investor, provided such Draw Down Notice
was made in accordance with the terms and conditions of the Agreement (including the satisfaction
or waiver of the conditions to the obligation of the Investor to accept a Draw Down set forth in
Article VII of the Agreement), provided further, that such failure was reasonably within the
control of the Investor.
Per Share Warrant Value shall mean the difference resulting from subtracting the
Exercise Price from the average of the Closing Prices on the five Trading Days immediately
preceding the Exercise Date.
Person shall mean an individual, a corporation, a partnership, a limited liability
company, an association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
Principal Market shall mean the NASDAQ Global Select Market, the NASDAQ Global
Market, the NASDAQ Capital Market, the American Stock Exchange or the New York Stock Exchange,
whichever is at the time the principal trading exchange or market for the Common Stock.
SEC shall mean the United States Securities and Exchange Commission.
Trading Day shall mean any day other than a Saturday or a Sunday on which the
Principal Market is open for trading in equity securities.
Warrant Holder shall mean the Investor or any permitted assignee or permitted
transferee of all or any portion of this Warrant.
Warrant Shares shall mean those shares of Common Stock received or to be received
upon exercise of this Warrant.
Section 2. Exercise.
(a) Method of Exercise. This Warrant may be exercised in whole or in part (but not as
to a fractional share of Common Stock), at any time and from time to time during the Exercise
Period, by the Warrant Holder by surrender of this Warrant, with the form of exercise attached
hereto as Exhibit A completed and duly executed by the Warrant Holder (the Exercise
Notice), to the Company at the address set forth in Section 10.4 of the Agreement, accompanied
by payment of the Exercise Price multiplied by the number of shares of Common Stock for which this
Warrant is being exercised (the Aggregate Exercise Price). The later of the date on
which an Exercise Notice or payment of the Aggregate Exercise Price (unless this Warrant is
exercised in accordance with Section 2(c) below) is received by the Company in accordance with this
clause (a) shall be deemed an Exercise Date.
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(b) Payment of Aggregate Exercise Price. Subject to paragraph (c) below, payment of
the Aggregate Exercise Price shall be made by wire transfer of immediately available funds to an
account designated by the Company. If the amount of the payment received by the Company is less
than the Aggregate Exercise Price, the Warrant Holder will be notified of the deficiency and shall
make payment in that amount within three (3) Trading Days. In the event the payment exceeds the
Aggregate Exercise Price, the Company will refund the excess to the Warrant Holder within five (5)
Trading Days of receipt.
(c) Cashless Exercise. In the event that the Warrant Shares to be received by the
Warrant Holder upon exercise of the Warrant may not be resold pursuant to an effective registration
statement or an exemption to the registration requirements of the Securities Act and applicable
state laws, the Warrant Holder may, as an alternative to payment of the Aggregate Exercise Price
upon exercise in accordance with paragraph (b) above, elect to effect a cashless exercise by so
indicating on the Exercise Notice and including a calculation of the number of shares of Common
Stock to be issued upon such exercise in accordance with the terms hereof (a Cashless
Exercise). If a registration statement on Form S-3 under the Securities Act or such other
form as deemed appropriate by counsel to the Company for the registration for the resale by the
Warrant Holder of (x) the shares of Common Stock of the Company that may be purchased under the
Agreement, (y) the Warrant Shares, or (z) any securities issued or issuable with respect to any of
the foregoing by way of exchange, stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization or otherwise, has been
declared effective by the SEC and remains effective, the Company may, in its sole discretion,
permit the Warrant Holder to effect a Cashless Exercise or require the Warrant Holder to pay the
Exercise Price of the Warrant Shares being purchased by the Warrant Holder under this Warrant. In
the event of a Cashless Exercise, the Warrant Holder shall receive that number of shares of Common
Stock determined by (i) multiplying the number of Warrant Shares for which this Warrant is being
exercised by the Per Share Warrant Value and (ii) dividing the product by the average of the
Closing Prices on the five Trading Days immediately preceding the Exercise Date, rounded to the
nearest whole share. The Company shall cancel the total number of Warrant Shares equal to the
excess of the number of the Warrant Shares for which this Warrant is being exercised over the
number of Warrant Shares to be received by the Warrant Holder pursuant to such Cashless Exercise.
(d) Replacement Warrant. In the event that the Warrant is not exercised in full, the
number of Warrant Shares shall be reduced by the number of such Warrant Shares for which this
Warrant is exercised, and the Company, at its expense, shall forthwith issue and deliver to or upon
the order of the Warrant Holder a new Warrant of like tenor in the name of the Warrant Holder,
reflecting such adjusted number of Warrant Shares.
Section 3. Ten Percent Limitation. The Warrant Holder may not exercise this Warrant
such that the number of Warrant Shares to be received pursuant to such exercise aggregated with all
other shares of Common Stock that are then beneficially owned or deemed to be beneficially owned by
the Warrant Holder would result in (i) the Warrant Holder owning more than 9.9% of all of such
Common Stock as would be outstanding on such Exercise Date, as determined in accordance with
Section 13(d) of the Exchange Act or (ii) the Company being required to file any notification or
report forms under the Hart Scott Rodino Antitrust
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Improvements Act of 1976, as amended. The Warrant Holder acknowledges and agrees that the
enforcement of the foregoing restriction is not an obligation on the part of the Company and any
breach thereof shall not be deem to be a material breach by the Company.
Section 4. Delivery of Warrant Shares.
(a) Subject to the terms and conditions of this Warrant, as soon as practicable after the
exercise of this Warrant in full or in part, and in any event within ten (10) Trading Days
thereafter, the Company at its expense (including, without limitation, the payment by it of any
applicable issue taxes) will cause to be deposited with the Depositary Trust Company via
book-entry, the number of validly issued, fully paid and non-assessable Warrant Shares to which the
Warrant Holder shall be entitled on such exercise, together with any other stock or other
securities or property (including cash, where applicable) to which the Warrant Holder is entitled
upon such exercise in accordance with the provisions hereof.
(b) This Warrant may not be exercised as to fractional shares of Common Stock. In the event
that the exercise of this Warrant, in full or in part, would result in the issuance of any
fractional share of Common Stock, then in such event the Warrant Holder shall receive the number of
shares rounded down to the nearest whole share.
Section 5. Representations, Warranties and Covenants of the Company.
(a) The Warrant Shares, when issued in accordance with the terms hereof, will be duly
authorized and, when paid for and issued in accordance with the terms hereof, shall be validly
issued, fully paid and non-assessable.
(b) The Company shall take all commercially reasonable action and proceedings as may be
required and permitted by applicable law, rule and regulation for the legal and valid issuance of
this Warrant and the Warrant Shares to the Warrant Holder.
(c) The Company has authorized and reserved for issuance to the Warrant Holder the requisite
number of shares of Common Stock to be issued pursuant to this Warrant. The Company shall at all
times reserve and keep available, solely for issuance and delivery as Warrant Shares hereunder,
such shares of Common Stock as shall from time to time be issuable as Warrant Shares.
(d) From the date hereof through the last date on which this Warrant is exercisable, the
Company shall take all commercially reasonable action to ensure that the Common Stock remains
listed or quoted on the Principal Market.
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Section 6. Adjustment of the Exercise Price. The Exercise Price and, accordingly, the
number of Warrant Shares issuable upon exercise of the Warrant, shall be subject to adjustment from
time to time upon the happening of certain events as follows:
(a) Reclassification, Consolidation, Merger, Mandatory Share Exchange, Sale or
Transfer.
(i) Upon occurrence of any of the events specified in subsection (a)(ii) below (the
Adjustment Events) while this Warrant is unexpired and not exercised in full, the Warrant
Holder may in its sole discretion require the Company, or any successor or purchasing corporation,
as the case may be, without payment of any additional consideration therefor, upon surrender by the
Warrant Holder of the Warrant to be replaced, to execute and deliver to the Warrant Holder a new
Warrant providing that the Warrant Holder shall have the right to exercise such new Warrant (upon
terms not less favorable to the Warrant Holder than those then applicable to this Warrant) and to
receive upon such exercise, in lieu of each share of Common Stock theretofore issuable upon
exercise of this Warrant, the kind and amount of shares of stock, other securities, money or
property receivable upon such Adjustment Event by the holder of one share of Common Stock issuable
upon exercise of this Warrant had this Warrant been exercised immediately prior to such Adjustment
Event, and the Exercise Price shall be proportionately adjusted, as applicable, such that the
aggregate amount to be paid by the Warrant Holder to acquire all of the Warrant Shares upon
exercise after such Adjustment Event shall be equal to the aggregate amount to be paid by the
Warrant Holder to acquire all of the Warrant Shares upon exercise prior to such Adjustment Event.
Such new Warrant shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6.
(ii) The Adjustment Events shall be (1) any reclassification or change of Common Stock (other
than a change in par value, as a result of a subdivision or combination of Common Stock or in
connection with an Excluded Merger or Sale), and (2) any consolidation, merger or mandatory share
exchange of the Company with or into another corporation (other than a merger or mandatory share
exchange with another corporation in which the Company is a continuing corporation and which does
not result in any reclassification or change other than a change in par value or as a result of a
subdivision or combination of Common Stock), other than (each of the following referred to as an
Excluded Merger or Sale) a transaction involving (A) sale of all or substantially all of
the assets of the Company, (B) any merger, consolidation or similar transaction where the
consideration payable to the stockholders of the Company by the acquiring Person consists
substantially of cash or publicly traded securities, or a combination thereof, or where the
acquiring Person does not agree to assume the obligations of the Company under outstanding warrants
(including this Warrant). In the event of an Excluded Merger or Sale, the Company shall deliver a
notice to the Warrant Holder at least 10 days before the consummation of such Excluded Merger or
Sale, the Warrant Holder may exercise this Warrant at any time before the consummation of such
Excluded Merger or Sale (and such exercise may be made contingent upon the consummation of such
Excluded Merger or Sale), and any portion of this Warrant that has not been exercised before
consummation of such Excluded Merger or Sale shall terminate and expire, and shall no longer be
outstanding.
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(b) Subdivision or Combination of Shares. If the Company, at any time while this
Warrant is unexpired and not exercised in full, shall subdivide its Common Stock, the Exercise
Price shall be proportionately reduced as of the effective date of such subdivision, or, if the
Company shall take a record of holders of its Common Stock for the purpose of so subdividing its
Common Stock, as of such record date, whichever is earlier. If the Company, at any time while this
Warrant is unexpired and not exercised in full, shall combine its Common Stock, the Exercise Price
shall be proportionately increased as of the effective date of such combination, or, if the Company
shall take a record of holders of its Common Stock for the purpose of so combining its Common
Stock, as of such record date, whichever is earlier.
(c) Stock Dividends. If the Company, at any time while this Warrant is unexpired and
not exercised in full, shall pay a dividend or other distribution in shares of Common Stock to all
holders of Common Stock, then the Exercise Price shall be adjusted, as of the date the Company
shall take a record of the holders of its Common Stock for the purpose of receiving such dividend
or other distribution (or if no such record is taken, as at the date of such payment or other
distribution), to that price determined by multiplying the Exercise Price in effect immediately
prior to such payment or other distribution by a fraction: (i) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately prior to such dividend or
distribution, and (ii) the denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. The provisions of this subsection
(c) shall not apply under any of the circumstances for which an adjustment is provided in
subsections (a) or (b).
(d) Liquidating Dividends, Etc. If the Company, at any time while this Warrant is
unexpired and not exercised in full, makes a distribution of its assets or evidences of
indebtedness to the holders of its Common Stock as a dividend in liquidation or by way of return of
capital or other than as a dividend payable out of earnings or surplus legally available for
dividends under applicable law or any distribution to such holders made in respect of the sale of
all or substantially all of the Companys assets (other than under the circumstances provided for
in the foregoing subsections (a) through (c)), then the Warrant Holder shall be entitled to receive
upon exercise of this Warrant in addition to the Warrant Shares receivable in connection therewith,
and without payment of any consideration other than the Exercise Price, the kind and amount of such
distribution per share of Common Stock multiplied by the number of Warrant Shares that, on the
record date for such distribution, are issuable upon such exercise of the Warrant (with no further
adjustment being made following any event which causes a subsequent adjustment in the number of
Warrant Shares issuable), and an appropriate provision therefor shall be made a part of any such
distribution. The value of a distribution that is paid in other than cash shall be determined in
good faith by the Board of Directors of the Company. Notwithstanding the foregoing, in the event
of a proposed dividend in liquidation or distribution to the stockholders made in respect of the
sale of all or substantially all of the Companys assets, the Company shall deliver a notice to the
Warrant Holder at least 10 days before the date on which the Company shall take a record of the
holders of its Common Stock for the purpose of receiving such dividend or other distribution (or if
no such record is taken, at least 10 days before the date of such payment or other distribution),
the Warrant Holder may exercise this Warrant at any time before such record date or the date of
such payment or other distribution, as applicable, (and such exercise may be made contingent upon
such payment or other distribution), and any
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portion of this Warrant that has not been exercised before such record date or the date of
such payment or other distribution, as applicable, shall terminate and expire, and shall no longer
be outstanding.
(e) Adjustment for Spin Off. If, for any reason, prior to the exercise of this
Warrant in full, the Company spins off or otherwise divests itself of a part of its business or
operations or disposes all or a part of its assets in a transaction (a Spin Off) in which
the Company does not receive compensation for such business, operations or assets, but causes
securities of another entity (Spin Off Securities) to be issued to all or substantially
all holders of Common Stock, then the Company shall cause (i) to be reserved Spin Off Securities
equal to the number thereof which would have been issued to the Warrant Holder in the event that
the entire unexercised portion of this Warrant outstanding on the record date (the Record
Date) for determining the number of Spin Off Securities to be issued to holders of Common
Stock had been exercised by the Warrant Holder as of the close of business on the Trading Day
immediately prior to the Record Date (the Reserved Spin Off Shares), and (ii) to be
issued to the Warrant Holder on the exercise of all or any unexercised portion of this Warrant,
such amount of the Reserved Spin Off Shares equal to (x) the Reserved Spin Off Shares multiplied by
(y) a fraction, of which (I) the numerator is the unexercised portion of this Warrant then being
exercised, and (II) the denominator is the aggregate amount of the unexercised portion of this
Warrant.
Section 7. Notice of Adjustments. Whenever the Exercise Price or number of Warrant
Shares shall be adjusted pursuant to Section 6 hereof, the Company shall promptly prepare a
certificate signed by its Chief Executive Officer or Chief Financial Officer setting forth in
reasonable detail the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated (including a description of the basis on which the Companys
Board of Directors made any determination hereunder), and the Exercise Price and number of Warrant
Shares purchasable at that Exercise Price after giving effect to such adjustment, and shall
promptly cause copies of such certificate to be delivered to the Warrant Holder by a means set
forth in Section 10.4 of the Agreement.
Section 8. No Impairment. The Company will not, by amendment of its Charter or Bylaws
or through any reorganization, transfer of assets, consolidation, merger, dissolution or issue or
sale of securities, willfully avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of the Warrant Holder against wrongful impairment. Without limiting the generality of
the foregoing, the Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor on such exercise, and (b) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue fully paid and
non-assessable Warrant Shares on the exercise of this Warrant. Notwithstanding the foregoing,
nothing in this Section 8 shall restrict or impair the Companys right to effect any changes to the
rights, preferences, privileges or restrictions associated with the Warrant Shares so long as such
changes do not affect the rights, preferences, privileges or restrictions associated with the
Warrant Shares in a manner adversely different from the effect
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that such changes have generally on the rights, preferences, privileges or restrictions
associated with all other shares of Common Stock.
Section 9. Rights As Stockholder. Except as set forth in Section 6 above, prior to
exercise of this Warrant, the Warrant Holder shall not be entitled to any rights as a stockholder
of the Company with respect to the Warrant Shares, including (without limitation) the right to vote
such shares, receive dividends or other distributions thereon or be notified of stockholder
meetings.
Section 10. Replacement of Warrant. Upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of the Warrant and, in the case of any
such loss, theft or destruction of the Warrant, upon delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation,
on surrender and cancellation of such Warrant, the Company at its expense will execute and deliver,
in lieu thereof, a new Warrant of like tenor.
Section 11. Choice of Law. This Warrant shall be construed under the laws of the
State of New York.
Section 12. Entire Agreement; Amendments. Except for any written instrument
concurrent or subsequent to the date hereof executed by the Company and the Investor, this Warrant,
the Agreement and the Registration Rights Agreement contain the entire understanding of the parties
with respect to the matters covered hereby and thereby. No provision of this Warrant may be waived
or amended other than by a written instrument signed by the party against whom enforcement of any
such amendment or waiver is sought.
Section 13. Restricted Securities.
(a) Registration or Exemption Required. This Warrant has been issued in a transaction
exempt from the registration requirements of the Securities Act in reliance upon the provisions of
Section 4(2) thereof and Regulation D promulgated thereunder, and/or upon such other exemption from
the registration requirements of the Securities Act as may be available with respect to this
Warrant. This Warrant and the Warrant Shares issuable upon exercise of this Warrant may not be
resold except pursuant to an effective registration statement or an exemption to the registration
requirements of the Securities Act and applicable state laws.
(b) Legend. Any replacement Warrants issued pursuant to Section 2 and Section 10
hereof and, unless a registration statement has been declared effective by the SEC and remains
effective in accordance with the Securities Act with respect thereto, any Warrant Shares issued
upon exercise hereof, shall bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY OTHER APPLICABLE SECURITIES LAWS
AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
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PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED,
HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION WHICH IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
(c) No Other Legend or Stock Transfer Restrictions. No legend other than the one
specified in Section 13(b) has been or shall be placed on the share certificates representing the
Warrant Shares and no instructions or stop transfer orders (so called stock transfer
restrictions) or other restrictions have been or shall be given to the Companys transfer
agent with respect thereto other than as expressly set forth in this Section 13.
(d) Assignment. Assuming the conditions of Section 13(a) above regarding registration
or exemption have been satisfied, the Warrant Holder may sell, transfer, assign, pledge or
otherwise dispose of this Warrant (each of the foregoing, a Transfer), in whole or in
part, but only to an Affiliate of the Warrant Holder. The Warrant Holder shall deliver a written
notice to the Company, substantially in the form of the Assignment attached hereto as
Exhibit B, indicating the person or persons to whom the Warrant shall be Transferred and
the respective number of Warrant Shares to be covered by the warrants to be Transferred to each
assignee. The Company shall effect the Transfer within ten (10) days, and shall deliver to the
Transferee(s) designated by the Warrant Holder a Warrant or Warrants of like tenor and terms for
the appropriate number of shares. In connection with and as a condition of any such proposed
Transfer, the Company may require (i) the Warrant Holder to provide an opinion of counsel to the
Warrant Holder in form and substance reasonably satisfactory to the Company to the effect that the
proposed Transfer complies with all applicable federal and state securities laws and (ii) any such
Transferee to provide customary representations and warranties attendant to the acquisition of
unregistered securities, including without limitation the Transferees investment intent and status
as an accredited investor within the meaning of Regulation D.
(e) Investors Compliance. Nothing in this Section 13 shall affect in any way the
Investors obligations under any agreement to comply with all applicable securities laws upon
resale of the Common Stock.
Section 14. Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be given in accordance with Section 10.4 of
the Agreement.
Section 15. Miscellaneous. The headings in this Warrant are for purposes of reference
only, and shall not limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
Section 16. Company Call Right.
(a) If a Funding Default occurs, the Company shall have the right to demand the surrender of
this Warrant or any remaining portion thereof, Warrant Shares and/or cash from the Investor as
follows (the Call Right):
9
(i) If the Investor has not previously exercised this Warrant in full, then the Company shall
have a right to demand the surrender of this Warrant, or remaining portion thereof, from the
Investor without compensation, and the Investor shall promptly surrender this Warrant, or remaining
portion thereof. Following such demand for surrender, this Warrant shall automatically be deemed
to have been canceled and shall have no further force or effect.
(ii) If, prior to receiving a Call Right Notice (as defined below), the Investor has
previously exercised this Warrant with respect to some or all of the Warrant Shares, and the
Investor has not previously sold such Warrant Shares, then Company shall have a right to purchase
from the Investor that number of shares of Common Stock equal to the number of shares of Common
Stock issued in connection with the exercise(s) of the Warrant, at a repurchase price per share
equal to the price per share paid by the Investor in connection with such exercise(s). For greater
certainty, (a) if Warrant Shares were exercised for cash, the purchase price per share under the
Call Right shall be equal to the Exercise Price, (b) if Warrant Shares were exercised on a cashless
exercise basis, the purchase price per share for such Warrant Shares under the Call Right shall be
zero, and (c) if such Warrant Shares were exercised on both a cash and cashless exercise basis, the
purchase price per share under the Call Right shall be equal to the total amount of cash paid in
connection with such cash exercise(s) divided by the total number of shares of Common Stock issued
in connection with all exercises of the Warrant (whether on a cash or cashless exercise basis).
(iii) If, prior to receiving a Call Right Notice, the Investor has previously exercised this
Warrant with respect to some or all of the Warrant Shares, and the Investor subsequently sold such
Warrant Shares, then the Investor shall remit to the Company the excess, if any, of (x) the
proceeds received by the Investor through the sale of such Warrant Shares, over (y) the aggregate
Exercise Price for such Warrant Shares. In the event that the Investor obtained such Warrant
Shares through a Cashless Exercise, then the Investor shall instead remit to the Company all
proceeds received by the Investor through the sale of such Warrant Shares. For the avoidance of
doubt, in the event that the Investor has sold some or all of the Warrant Shares prior to receiving
a Call Right Notice, then the right set forth in this paragraph (iii) shall constitute the sole
Call Right of the Company with respect to such Warrant Shares which have been sold.
(b) The Company may exercise the Call Right by delivering a notice (the Call Right
Notice) to the Investor within thirty (30) days after the occurrence of a Funding Default. On
the tenth (10th) Trading Day following delivery of the Call Right Notice to the Investor, the
Company shall tender the purchase price, if any, and Investor shall tender shares of Common Stock,
if any, to be sold to the Company pursuant to the Call Right Notice, immediately following which
the Company and the Investor shall consummate such purchase and sale. The Call Right shall survive
both the assignment of the Warrant by the Investor and the disposition of the Warrant Shares by the
Investor following exercise of the Warrant.
[Remainder of Page Intentionally Left Blank. Signature Page Follows.]
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IN WITNESS WHEREOF, this Warrant was duly executed by the undersigned, thereunto duly authorized,
as of the date first set forth above.
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ELECTRO-OPTICAL SCIENCES, INC.
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By: |
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Joseph V. Gulfo, M.D. |
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Chief Executive Officer |
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Investor acknowledges and agrees to the terms and conditions of this Warrant.
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KINGSBRIDGE CAPITAL LIMITED
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By: |
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Antony Gardner-Hillman |
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Director |
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EXHIBIT A TO THE WARRANT
EXERCISE FORM
ELECTRO-OPTICAL SCIENCES, INC.
The undersigned hereby irrevocably exercises the right to purchase shares of Common
Stock of Electro-Optical Sciences, Inc., a Delaware corporation (the Company), evidenced
by the attached Warrant, and (CIRCLE EITHER (i) or (ii)) (i) tenders herewith payment of the
Aggregate Exercise Price with respect to such shares in full, in the amount of $___, in
cash, by certified or official bank check or by wire transfer for the account of the Company or
(ii) elects, pursuant to Section 2(c) of the Warrant, to convert such Warrant into shares of Common
Stock of the Company on a cashless exercise basis, all in accordance with the conditions and
provisions of said Warrant.
The undersigned requests that stock certificates for such Warrant Shares be issued, and a Warrant
representing any unexercised portion hereof be issued, pursuant to this Warrant, in the name of the
registered Warrant Holder and delivered to the undersigned at the address set forth below.
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Signature of Registered Holder
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Name of Registered Holder (Print)
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EXHIBIT B TO THE WARRANT
ASSIGNMENT
(To be executed by the registered Warrant Holder desiring to transfer the Warrant)
FOR VALUED RECEIVED, the undersigned Warrant Holder of the attached Warrant hereby sells, assigns
and transfers unto the persons below named the right to purchase shares of Common
Stock of Electro-Optical Sciences, Inc. (the Company) evidenced by the attached Warrant
and does hereby irrevocably constitute and appoint attorney to transfer the said
Warrant on the books of the Company, with full power of substitution in the premises.
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Fill in for new Registration of Warrant: |
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Please print name and address of assignee (including zip code number) |
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EX-10.1
Exhibit 10.1
Execution Copy
COMMON STOCK PURCHASE AGREEMENT
by and between
KINGSBRIDGE CAPITAL LIMITED
and
ELECTRO-OPTICAL SCIENCES, INC.
dated as of May 7, 2009
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
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1 |
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ARTICLE II PURCHASE AND SALE OF COMMON STOCK |
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5 |
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Section 2.1 Purchase and Sale of Stock |
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5 |
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Section 2.2 Closing |
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6 |
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Section 2.3 Registration Statement and Prospectus |
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6 |
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Section 2.4 Warrant |
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Section 2.5 Blackout Shares |
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6 |
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ARTICLE III DRAW DOWN TERMS |
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6 |
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Section 3.1 Draw Down Notice |
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Section 3.2 Number of Shares |
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Section 3.3 Limitation on Draw Downs |
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Section 3.4 Trading Cushion |
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7 |
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Section 3.5 Settlement |
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Section 3.6 Delivery of Shares; Payment of Draw Down Amount |
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Section 3.7 Failure to Deliver Shares |
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Section 3.8 Special Issue Right |
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9 |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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Section 4.1 Organization, Good Standing and Power |
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Section 4.2 Authorization; Enforcement |
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Section 4.3 Capitalization |
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Section 4.4 Issuance of Shares |
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Section 4.5 No Conflicts |
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Section 4.6 Commission Documents, Financial Statements |
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Section 4.7 No Material Adverse Change |
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Section 4.8 No Undisclosed Liabilities |
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Section 4.9 No Undisclosed Events or Circumstances |
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Section 4.10 Actions Pending |
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Section 4.11 Compliance with Law |
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Section 4.12 Certain Fees |
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Section 4.13 Disclosure |
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Section 4.14 Material Non-Public Information |
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Section 4.15 Exemption from Registration; Valid Issuances |
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Section 4.16 Form S-3 Eligibility |
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Section 4.17 No General Solicitation or Advertising in Regard to this Transaction |
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Section 4.18 No Integrated Offering |
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Section 4.19 Acknowledgment Regarding Investors Purchase of Shares |
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15 |
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ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR |
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15 |
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Section 5.1 Organization and Standing of the Investor |
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Section 5.2 Authorization and Power |
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Section 5.3 No Conflicts |
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Section 5.4 Financial Capability |
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Section 5.5 Information |
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Section 5.6 Trading Restrictions |
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Section 5.7 Statutory Underwriter Status |
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Section 5.8 Not an Affiliate |
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Section 5.9 Manner of Sale |
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Section 5.10 Prospectus Delivery |
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ARTICLE VI COVENANTS OF THE COMPANY |
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18 |
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Section 6.1 Securities Compliance |
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Section 6.2 Reservation of Common Stock |
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Section 6.3 Registration and Listing |
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Section 6.4 Registration Statement |
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Section 6.5 Compliance with Laws |
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Section 6.6 Other Financing |
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Section 6.7 Prohibited Transactions |
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Section 6.8 Corporate Existence |
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Section 6.9 Non-Disclosure of Non-Public Information |
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Section 6.10 Notice of Certain Events Affecting Registration; Suspension of Right to Request a Draw Down |
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Section 6.11 Amendments to the Registration Statement |
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Section 6.12 Prospectus Delivery |
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ARTICLE VII CONDITIONS TO THE OBLIGATION OF THE INVESTOR TO ACCEPT A DRAW DOWN |
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22 |
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Section 7.1 Accuracy of the Companys Representations and Warranties |
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Section 7.2 Performance by the Company |
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Section 7.3 Compliance with Law |
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Section 7.4 Effective Registration Statement |
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Section 7.5 No Knowledge |
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Section 7.6 No Suspension |
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Section 7.7 No Injunction |
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Section 7.8 No Proceedings or Litigation |
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Section 7.9 Sufficient Shares Registered for Resale |
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Section 7.10 Warrant |
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Section 7.11 Opinion of Counsel |
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Section 7.12 Accuracy of Investors Representation and Warranties |
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23 |
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ARTICLE VIII TERMINATION |
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24 |
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Section 8.1 Term |
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24 |
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Section 8.2 Other Termination. |
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Section 8.3 Effect of Termination |
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ARTICLE IX INDEMNIFICATION |
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25 |
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Section 9.1 Indemnification. |
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Section 9.2 Notification of Claims for Indemnification |
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26 |
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ARTICLE X MISCELLANEOUS |
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27 |
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Section 10.1 Fees and Expenses |
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27 |
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Section 10.2 Reporting Entity for the Common Stock |
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28 |
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Section 10.3 Brokerage |
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28 |
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Section 10.4 Notices |
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29 |
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Section 10.5 Assignment |
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30 |
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Section 10.6 Amendment; No Waiver |
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30 |
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Section 10.7 Entire Agreement |
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30 |
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Section 10.8 Severability |
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30 |
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Section 10.9 Title and Subtitles |
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Section 10.10 Counterparts |
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31 |
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Section 10.11 Choice of Law |
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31 |
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Section 10.12 Specific Enforcement, Consent to Jurisdiction |
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31 |
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Section 10.13 Survival |
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31 |
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Section 10.14 Publicity |
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32 |
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Section 10.15 Further Assurances |
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32 |
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This COMMON STOCK PURCHASE AGREEMENT (this Agreement) is entered into as of the 7th
day of May, 2009, by and between Kingsbridge Capital Limited, an entity organized and existing
under the laws of the British Virgin Islands, whose business address is P.O. Box 1075, Elizabeth
House, 9 Castle Street, St. Helier, Jersey, Channel Islands (the Investor), and
Electro-Optical Sciences, Inc., a corporation organized and existing under the laws of the State of
Delaware (the Company).
WHEREAS, the parties desire that, upon the terms and subject to the conditions and limitations
set forth herein, the Company may issue and sell to the Investor, from time to time as provided
herein, and the Investor shall purchase from the Company, up to $45 million worth of shares of
Common Stock (as defined below); and
WHEREAS, such investments will be made in reliance upon the provisions of Section 4(2)
(Section 4(2)) and Regulation D (Regulation D) of the United States Securities
Act of 1933, as amended and the rules and regulations promulgated thereunder (the Securities
Act), and/or upon such other exemption from the registration requirements of the Securities
Act as may be available with respect to any or all of the investments in Common Stock to be made
hereunder; and
WHEREAS, the parties hereto are concurrently entering into a Registration Rights Agreement in
the form of Exhibit A hereto (the Registration Rights Agreement) pursuant to
which the Company shall register the Common Stock issued and sold to the Investor under this
Agreement and issuable under the Warrant (as defined below), upon the terms and subject to the
conditions set forth therein; and
WHEREAS, in consideration for the Investors execution and delivery of, and its performance of
its obligations under, this Agreement, the Company is concurrently issuing to the Investor a
Warrant in the form of Exhibit B hereto (the Warrant) pursuant to which the
Investor may purchase from the Company up to 200,000 shares of Common Stock, upon the terms and
subject to the conditions set forth therein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
Average Trading Volume means the average trading volume of the twenty (20) Trading
Days during the thirty (30) Trading Days prior to the issuance of the Draw Down Notice that results
from excluding the five (5) highest and five (5) lowest Trading Days during such period.
Blackout Amount shall have the meaning assigned to such term in the Registration
Rights Agreement.
Blackout Shares shall have the meaning assigned to such term in the Registration
Rights Agreement.
Bylaws shall have the meaning assigned to such term in Section 4.3 hereof.
Charter shall have the meaning assigned to such term in Section 4.3 hereof.
Closing Date shall have the meaning assigned to such term in Section 2.2 hereof.
Closing Price as of any particular day shall mean the closing price per share of the
Common Stock as reported by the Principal Market on such day.
Commission means the United States Securities and Exchange Commission.
Commission Documents shall have the meaning assigned to such term in Section 4.6
hereof.
Commitment Period means the period commencing on the Effective Date and expiring on
the earliest to occur of (i) the date on which the Investor shall have purchased Shares pursuant to
this Agreement for an aggregate purchase price equal to the Maximum Commitment Amount, (ii) the
date this Agreement is terminated pursuant to Article VIII hereof, and (iii) the date occurring
thirty-six (36) months from the Effective Date.
Common Stock means the common stock of the Company, par value $0.001 per share.
Condition Satisfaction Date shall have the meaning assigned to such term in Article
VII hereof.
Damages means any loss, claim, damage, liability, costs and expenses (including,
without limitation, reasonable attorneys fees and expenses and costs and reasonable expenses of
expert witnesses and investigation).
Draw Down shall have the meaning assigned to such term in Section 3.1 hereof.
Draw Down Amount means the actual dollar amount of a Draw Down paid to the Company.
Draw Down Discount Price means, for any Trading Day during a Draw Down Pricing
Period (other than a Draw Down Pricing Period in respect of the Special Issue Right described in
Section 3.8), (i) 90% of the VWAP on any Trading Day during the Draw Down Pricing Period when VWAP
is equal to or exceeds $2.00 but is less than $6.75, (ii) 92% of the VWAP on any Trading Day
during the Draw Down Pricing Period when VWAP is equal to or exceeds $6.75 but is less than or
equal to $10.00, or (iii) 94% of the VWAP on any Trading Day during the Draw Down Pricing Period
when VWAP exceeds $10.00.
Draw Down Notice shall have the meaning assigned to such term in Section 3.1 hereof.
Draw Down Pricing Period shall mean, with respect to each Draw Down, a period of
eight (8) consecutive Trading Days beginning on the first Trading Day specified in a Draw Down
Notice.
- 2 -
DTC shall mean the Depository Trust Company, or any successor thereto.
Effective Date means the first Trading Day immediately following the date on which
the Registration Statement is declared effective by the Commission.
Exchange Act means the United States Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
Excluded Merger or Sale shall have the meaning assigned to such term in the Warrant.
FINRA means the Financial Industry Regulatory Authority.
Fixed Purchase Amount means, in respect of any Draw Down, up to 2.5% of the
Companys Market Capitalization as of the date of delivery of the applicable Draw Down Notice.
Knowledge means the actual knowledge of the Companys Chief Executive Officer or
Chief Financial Officer.
Liquidity Ratio means 0.25 (twenty-five percent (25%)).
Make Whole Amount shall have the meaning specified in Section 3.7.
Market Capitalization means, as of any Trading Day, the product of (i) the closing
sale price of the Common Stock as reported by Bloomberg L.P. using the AQR function and (ii) the
number of outstanding shares of Common Stock as reported by Bloomberg L.P. using the DES function.
Material Adverse Effect means any effect that is not negated, corrected, cured or
otherwise remedied within a reasonable period of time on the business, operations, properties or
financial condition of the Company and its consolidated subsidiaries that is material and adverse
to the Company and such subsidiaries, taken as a whole, and/or any condition, circumstance, or
situation that would prohibit or otherwise interfere with the ability of the Company to perform any
of its obligations under this Agreement, the Registration Rights Agreement or the Warrant in any
material respect; provided, however, that none of the following shall individually constitute a
Material Adverse Effect: (i) the effects of conditions or events that are generally
applicable to the capital, financial, banking or currency markets or the biotechnology industry;
(ii) the effects of conditions or events that are reasonably expected to occur in the Companys
ordinary course of business (such as, by way of example only, failed clinical trials, serious
adverse events involving the Companys product candidates or products, delays in product
development or commercial launch, unfavorable regulatory determinations, difficulties in generating
product sales or involving collaborators or intellectual property disputes); (iii) any changes or
effects resulting from the announcement or consummation of the transactions contemplated by this
Agreement, including, without limitation, any changes or effects associated with any particular
Draw Down, and (iv) changes in the market price of the Common Stock.
- 3 -
Maximum Commitment Amount means the lesser of (i) $45 million in aggregate Draw Down
Amounts or (ii) 3,527,000 shares of Common Stock (as adjusted for stock splits, stock combinations,
stock dividends and recapitalizations that occur on or after the date of this Agreement) minus the
number of Blackout Shares, if any, delivered to the Investor under the Registration Rights
Agreement; provided, however, that the Maximum Commitment Amount shall not exceed under any
circumstances that number of shares of Common Stock that the Company may issue pursuant to this
Agreement and the transactions contemplated hereby without (a) breaching the Companys obligations
under the rules and regulations of the Principal Market or (b) obtaining stockholder approval under
the applicable rules and regulations of the Principal Market (notwithstanding that such approval
may have been obtained).
Maximum Draw Down Amount means, in respect of any Draw Down (other than a Draw Down
in respect of the Special Issue Right described in Section 3.8), the lesser of (i) $10 million and
(ii) the greater of (x) the Fixed Purchase Amount and (y) the Purchase Amount Option.
Permitted Transaction shall have the meaning assigned to such term in Section 6.6
hereof.
Person means any individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including any government or political
subdivision or an agency or instrumentality thereof.
Principal Market means the NASDAQ Capital Market, the NASDAQ Global Select Market,
the NASDAQ Global Market, the American Stock Exchange or the New York Stock Exchange, whichever is
at the time the principal trading exchange or market for the Common Stock.
Prohibited Transaction shall have the meaning assigned to such term in Section 6.7
hereof.
Prospectus as used in this Agreement means the prospectus in the form included in
the Registration Statement, as supplemented from time to time pursuant to Rule 424(b) of the
Securities Act.
Purchase Amount Option means, in respect of any Draw Down, up to the lesser of (i)
3.5% of the Companys Market Capitalization as of the date of delivery of the applicable Draw Down
Notice and (ii) the product of (w) Average Trading Volume multiplied by (x) the Closing Price on
the Trading Day preceding the delivery of the applicable Draw Down Notice multiplied by (y) the
number of Trading Days during a Draw Down Pricing Period (8) multiplied by (z) the Liquidity Ratio
(0.25).
Registrable Securities means (i) the Shares, (ii) the Warrant Shares, and (iii) any
Common Stock issued or issuable with respect to any of the Shares or Warrant Shares while such
Shares or Warrant Shares are Registrable Securities by way of exchange, stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise (including, for the avoidance of doubt, any Blackout Shares
- 4 -
issued pursuant to the Registration Rights Agreement). As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities when (w) the
Registration Statement has been declared effective by the Commission and such Registrable
Securities have been disposed of pursuant to the Registration Statement, (x) such Registrable
Securities have been sold under circumstances under which all of the applicable conditions of Rule
144 (or any similar provision then in force) under the Securities Act (Rule 144) are met,
(y) such time as such Registrable Securities have been otherwise transferred to holders who may
trade such shares without restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing a restrictive legend or
(z) in the opinion of counsel to the Company such Registrable Securities may be sold without
registration and without any time, volume or manner limitations pursuant to Rule 144 (or any
similar provision then in effect) under the Securities Act.
Registration Rights Agreement shall have the meaning set forth in the recitals of
this Agreement.
Registration Statement shall have the meaning assigned to such term in the
Registration Rights Agreement.
Regulation D shall have the meaning set forth in the recitals of this Agreement.
Section 4(2) shall have the meaning set forth in the recitals of this Agreement.
Securities Act shall have the meaning set forth in the recitals of this Agreement.
Settlement Date shall have the meaning assigned to such term in Section 3.5 hereof.
Shares means the shares of Common Stock of the Company that are and/or may be
purchased hereunder.
Trading Day means any day other than a Saturday or a Sunday on which the Principal
Market is open for trading in equity securities.
VWAP means the volume weighted average price (the aggregate sales price of all
trades of Common Stock during each Trading Day divided by the total number of shares of Common
Stock traded during such Trading Day) of the Common Stock during any Trading Day as reported by
Bloomberg, L.P. using the AQR function.
Warrant shall have the meaning set forth in the recitals of this Agreement.
Warrant Shares means the shares of Common Stock issuable to the Investor upon
exercise of the Warrant.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 Purchase and Sale of Stock. Upon the terms and subject to the conditions
set forth in this Agreement, the Company shall to the extent it elects to make Draw Downs in
accordance with Article III hereof, issue and sell to the Investor and the Investor shall purchase
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Common Stock from the Company for an aggregate (in Draw Down Amounts) of up to the Maximum
Commitment Amount, consisting of purchases based on Draw Downs in accordance with Article III
hereof.
Section 2.2 Closing. In consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this Agreement, the Company agrees
to issue and sell to the Investor, and the Investor agrees to purchase from the Company, that
number of the Shares to be issued in connection with each Draw Down. The execution and delivery of
this Agreement (the Closing) shall take place at the offices of Stroock & Stroock & Lavan
LLP, 180 Maiden Lane, New York, NY 10038 at 5:00 p.m. local time on May 7, 2009, or at such other
time and place (including, without limitation, by way of facsimile exchange of executed documents
from different locations) or on such date as the Investor and the Company may agree upon (the
Closing Date). Each party shall deliver at or prior to the Closing all documents,
instruments and writings required to be delivered at the Closing by such party pursuant to this
Agreement.
Section 2.3 Registration Statement and Prospectus. The Company shall prepare and file
with the Commission the Registration Statement (including the Prospectus) in accordance with the
provisions of the Securities Act and the Registration Rights Agreement.
Section 2.4 Warrant. On the Closing Date, the Company shall issue and deliver the
Warrant to the Investor.
Section 2.5 Blackout Shares. The Company shall deliver any Blackout Amount or issue
and deliver any Blackout Shares to the Investor in accordance with Section 1.1(e) of the
Registration Rights Agreement.
ARTICLE III
DRAW DOWN TERMS
Subject to the satisfaction of the conditions hereinafter set forth in this Agreement, the
parties agree as follows:
Section 3.1 Draw Down Notice. During the Commitment Period, the Company may, in its
sole discretion, issue a Draw Down Notice (as hereinafter defined) which shall specify the dollar
amount the Company intends to raise from the Investor from the sale of Common Stock hereunder (each
such capital raising transaction, a Draw Down) up to a Draw Down Amount equal to the
Maximum Draw Down Amount. The Investor shall be obligated to accept each Draw Down initiated by
the Company, subject to the terms and conditions hereinafter provided. The Company shall inform
the Investor in writing by sending a duly completed notice in the form of Exhibit C hereto
(each, a Draw Down Notice) by e-mail to the addresses set forth in Section 10.4, with a
copy to the Investors counsel, as to such Draw Down Amount before commencement of trading on the
first Trading Day of the related Draw Down Pricing Period. In addition to the Draw Down Amount,
each Draw Down Notice shall designate the first Trading Day of the Draw Down Pricing Period. In no
event shall any Draw Down Amount exceed the Maximum Draw Down Amount. Each Draw Down Notice shall
be accompanied by a certificate,
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signed by the Chief Executive Officer or Chief Financial Officer, dated as of the date of such
Draw Down Notice, in the form of Exhibit D hereof.
Section 3.2 Number of Shares. Subject to Section 3.6(b), the number of Shares to be
issued in connection with each Draw Down shall be equal to the sum of the number of shares issuable
on each Trading Day of the Draw Down Pricing Period. Subject to Section 3.6(b), the number of
shares issuable on a Trading Day during a Draw Down Pricing Period shall be equal to the quotient
of one eighth (1/8th) of the Draw Down Amount divided by the Draw Down Discount Price for such
Trading Day.
Section 3.3 Limitation on Draw Downs. Only one Draw Down shall be permitted for each
Draw Down Pricing Period.
Section 3.4 Trading Cushion. Unless the parties agree in writing otherwise, there
shall be a minimum of three (3) Trading Days between the expiration of any Draw Down Pricing Period
and the beginning of the next succeeding Draw Down Pricing Period.
Section 3.5 Settlement. The number of Shares purchased by the Investor in any Draw
Down shall be determined and settled on two separate dates. Shares purchased by the Investor
during the first four Trading Days of any Draw Down Pricing Period shall be determined and settled
no later than the sixth Trading Day of such Draw Down Pricing Period. Shares purchased by the
Investor during the second four Trading Days of any Draw Down Pricing Period shall be determined
and settled no later than the second Trading Day after the last Trading Day of such Draw Down
Pricing Period. Each date on which settlement of the purchase and sale of Shares occurs hereunder
being referred to as a Settlement Date. The Investor shall provide the Company with
delivery instructions for the Shares to be issued at each Settlement Date at least two Trading Days
in advance of such Settlement Date. The number of Shares actually issued shall be rounded down to
the nearest whole number of Shares.
Section 3.6 Delivery of Shares; Payment of Draw Down Amount.
(a) On each Settlement Date, the Company shall deliver the Shares purchased by the Investor to
the Investor or its designees exclusively via book-entry through the DTC to an account designated
by the Investor, and upon receipt of the Shares, the Investor shall cause payment thereof to be
made to the Companys designated account by wire transfer of immediately available funds, if the
Shares are received by the Investor no later than 12:00 p.m. (Eastern Time), or next day available
funds, if the Shares are received thereafter. Upon the written request of the Company, the
Investor will cause its banker to confirm to the Company that the Investor has provided irrevocable
instructions to cause payment for the Shares to be made as set forth above, upon confirmation by
such banker that the Shares have been delivered through the DTC in unrestricted form.
(b) For each Trading Day during a Draw Down Pricing Period on which the VWAP is less than the
greater of: (i) 90% of the Closing Price of the Companys Common Stock on the Trading Day
immediately preceding the commencement of such Draw Down Pricing Period, (ii) $2.00 or (iii) the
price specified by the Company in the applicable Draw Down Notice, such Trading Day shall not be
used in calculating the number of Shares to be
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issued in connection with such Draw Down, and the Draw Down Amount in respect of such Draw
Down Pricing Period shall be reduced by one eighth (1/8th) of the initial Draw Down Amount
specified in the Draw Down Notice. If trading in the Companys Common Stock is suspended for any
reason for more than three (3) consecutive or non-consecutive hours during trading hours on the
Principal Market on any Trading Day during a Draw Down Pricing Period, such Trading Day shall be
disregarded in calculating the number of Shares to be issued in connection with such Draw Down, and
the Draw Down Amount in respect of such Draw Down Pricing Period shall be reduced by one eighth
(1/8th) of the initial Draw Down Amount specified in the Draw Down Notice. In addition, in the
event that the Company delivers a Blackout Notice to the Investor at any time on or after the date
that a Draw Down Notice is delivered, each Trading Day during the applicable Draw Down Pricing
Period after the delivery of such Blackout Notice shall be disregarded (subject to waiver by the
Investor) for the purposes of calculating the number of Shares to be issued in respect of the
applicable Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing Period shall be
reduced by one eighth (1/8th) of the initial Draw Down Amount specified in the Draw Down Notice for
each such Trading Day that is so disregarded. For the avoidance of doubt, any Trading Day that is
disregarded for the purposes of calculating the number of Shares to be issued in connection with a
Draw Down in accordance with the foregoing shall only reduce such number of Shares by one eighth
(1/8th), notwithstanding that such Trading Day may be so disregarded for more than one of the
reasons specified above.
Section 3.7 Failure to Deliver Shares. If on any Settlement Date, the Company fails
to cause the delivery of the Shares purchased by the Investor, and such failure is not cured within
two (2) Trading Days following such Settlement Date, the Company shall pay to the Investor on
demand in cash by wire transfer of immediately available funds to an account designated by the
Investor the Make Whole Amount; provided, however, that in the event that the Company is
prevented from delivering Shares in respect of any such Settlement Date in a timely manner by any
fact or circumstance that is not reasonably within the control of, or directly attributable to, the
Company, or is otherwise reasonably within the control of, or directly attributable to, the
Investor, then such two (2) Trading Day period shall be automatically extended until such time as
such fact or circumstance is cured. As used herein, the Make Whole Amount shall be an amount equal
to the sum of (i) the Draw Down Amount actually paid by the Investor in respect of such Shares plus
(ii) an amount equal to the actual loss suffered by the Investor in respect of sales to subsequent
purchasers (taking into account the return of the Draw Down Amount made under clause (i)), pursuant
to transactions entered into before the Settlement Date, of the Shares that were required to be
delivered by the Company, which shall be based upon documentation reasonably satisfactory to the
Company demonstrating the difference (if greater than zero) between (A) the price per share paid by
the Investor to purchase such number of shares of Common Stock necessary for the Investor to meet
its share delivery obligations to such subsequent purchasers minus (B) the average Draw Down
Discount Price during the applicable Draw Down Pricing Period. In the event that the Make Whole
Amount is not paid within two (2) Trading Days following a demand therefor from the Investor, the
Make Whole Amount shall accrue annual interest (on the basis of the 365 day year) compounded daily
at a rate equal to the greater of (i) the prime rate of interest then in effect as published by the
Wall Street Journal plus three percent (3%) and (ii) ten percent (10%), up to and including the
date on which the Make Whole Amount is actually paid. For the purposes of this Section 3.7 facts
or circumstances that
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are reasonably within the control of the Company include such facts and circumstances solely
attributable to acts or omissions of the Company, its officers, directors, employees, agents and
representatives, including, without limitation, any transfer agent(s) and/or accountant(s) engaged
by the Company in connection with the Companys performance of its obligations hereunder.
Notwithstanding anything to the contrary set forth in this Agreement, in the event that the Company
pays the Make Whole Amount (plus interest, if applicable) in respect of any Settlement Date in
accordance with this Section 3.7, such payment shall be the Investors sole remedy in respect of
the Companys failure to deliver Shares in respect of such Settlement Date, and the Company shall
not be obligated to deliver such Shares.
Section 3.8 Special Issue Right. Subject to the terms and conditions set forth in
this Agreement, including, without limitation, the provisions of this Article III and the
conditions set forth in Article VII, at any time beginning on the Effective Date and ending on
October 1, 2009, the Company may deliver a Draw Down Notice to the Investor indicating that it is
exercising its right pursuant to this Section 3.8 (the Special Issue Right) to effect a
Draw Down with a Maximum Draw Down Amount equal to the lesser of (i) $4 million and (ii) 3.5% of
the Companys Market Capitalization as of the date of delivery of such Draw Down Notice and a Draw
Down Discount Price equal to 90% of the VWAP on each Trading Day during the associated Draw Down
Pricing Period used in calculating the number of Shares to be issued in connection with such Draw
Down under the limitations set forth in Section 3.6(b). The Company may not exercise the Special
Issue Right more than one time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties to the Investor:
Section 4.1 Organization, Good Standing and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its properties and assets and
to carry on its business as now being conducted. Except as set forth in the Commission Documents
(as defined below), as of the date hereof, the Company does not own more than fifty percent (50%)
of the outstanding capital stock of or control any other business entity, other than any
wholly-owned subsidiary that is not significant within the meaning of Regulation S-X
promulgated by the Commission. The Company is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, other than those in which the
failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section 4.2 Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and the Warrant and to issue the Shares, the Warrant, the Warrant
Shares and any Blackout Shares (except to the extent that the number of Blackout Shares required to
be issued exceeds the number of authorized shares of Common Stock under the Charter); (ii) the
execution and delivery of this Agreement and the Registration Rights Agreement, and the execution,
issuance and delivery of the Warrant, by the Company and the
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consummation by it of the transactions contemplated hereby and thereby have been duly and
validly authorized by all necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required (other than as contemplated by
Section 6.5); and (iii) each of this Agreement and the Registration Rights Agreement has been duly
executed and delivered, and the Warrant has been duly executed, issued and delivered, by the
Company and constitutes a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership, or
similar laws relating to, or affecting generally the enforcement of, creditors rights and remedies
or indemnification or by other equitable principles of general application (including any
limitation of equitable remedies).
Section 4.3 Capitalization. The authorized capital stock of the Company and the
shares thereof issued and outstanding are set forth in the Commission Documents as of the date
specified therein. All of the outstanding shares of the Common Stock have been duly and validly
authorized and issued, and are fully paid and non-assessable. Except as set forth in this
Agreement, as described in the Commission Documents or as disclosed on a schedule (the
Disclosure Schedule) previously delivered to the Investor, as of December 31,2008, no
shares of Common Stock were entitled to preemptive rights or registration rights and there were no
outstanding options, warrants, scrip, rights issued by the Company to subscribe to, call or
commitments of any character whatsoever issued by the Company relating to, or securities or rights
convertible into or exchangeable for or giving any right to subscribe for, any shares of capital
stock of the Company, except for stock options issued by the Company to its employees, directors
and consultants. Except as set forth in this Agreement, the Commission Documents, or as previously
disclosed to the Investor in the Disclosure Schedule, as of December 31, 2008, there were no
contracts, commitments, understandings, or arrangements by which the Company is or may become bound
to issue additional shares of the capital stock of the Company or options, securities or rights
convertible into or exchangeable for or giving any right to subscribe for any shares of capital
stock of the Company. Except as described in the Commission Documents or as previously disclosed
to the Investor in the Disclosure Schedule, as of the date hereof the Company is not a party to any
agreement granting registration rights to any Person with respect to any of its equity or debt
securities. Except as set forth in the Commission Documents or as previously disclosed to the
Investor in the Disclosure Schedule, as of the date hereof the Company is not a party to, and it
has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital
stock of the Company. The offer and sale of all capital stock, convertible securities, rights,
warrants, or options of the Company issued during the twelve month period immediately prior to the
Closing complied in all material respects with all applicable federal and state securities laws,
and no stockholder has a right of rescission or damages with respect thereto that would have a
Material Adverse Effect. The Company has furnished or made available to the Investor true and
correct copies of the Companys Amended and Restated Certificate of Incorporation, as amended and
in effect on the date hereof (the Charter), and the Companys Amended and Restated
Bylaws, as amended and in effect on the date hereof (the Bylaws).
Section 4.4 Issuance of Shares. Subject to Section 6.5, the Shares, the Warrant and
the Warrant Shares have been, and any Blackout Shares will be, duly authorized by all necessary
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corporate action (except to the extent that the number of Blackout Shares required to be
issued exceeds the number of authorized shares of Common Stock under the Charter) and, when issued
and paid for in accordance with the terms of this Agreement, the Registration Rights Agreement and
the Warrant, and subject to, and in reliance on, the representations, warranties and covenants made
herein by the Investor, the Shares and the Warrant Shares shall be validly issued and outstanding,
fully paid and non-assessable, and the Investor shall be entitled to all rights accorded to a
holder of shares of Common Stock.
Section 4.5 No Conflicts. The execution, delivery and performance of this Agreement,
the Registration Rights Agreement, the Warrant and any other document or instrument contemplated
hereby or thereby, by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby do not and shall not in any material respect: (i) result in the
violation of any provision of the Charter or Bylaws, (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default) under, or give rise
to any rights of termination, amendment, acceleration or cancellation of, any material agreement,
mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which the Company is a party and that has not been waived where such default or conflict would
constitute a Material Adverse Effect, (iii) create or impose a lien, charge or encumbrance on any
property of the Company under any agreement or any commitment to which the Company is a party or by
which the Company is bound or by which any of its respective properties or assets are bound which
would constitute a Material Adverse Effect, (iv) result in a violation of any federal, state, local
or foreign statute, rule, regulation, order, writ, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or any of its subsidiaries or by which
any property or asset of the Company or any of its subsidiaries are bound or affected where such
violation would constitute a Material Adverse Effect, or (v) require any consent of any third-party
that has not been obtained pursuant to any material contract to which the Company is subject or to
which any of its assets, operations or management may be subject where the failure to obtain any
such consent would constitute a Material Adverse Effect. The Company is not required under
applicable federal, state or local law, rule or regulation to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental agency in order for it
to execute, deliver or perform any of its obligations under this Agreement, the Registration Rights
Agreement or the Warrant, or issue and sell the Shares, the Warrant Shares or the Blackout Shares
(except to the extent that the number of Blackout Shares required to be issued exceeds the number
of authorized shares of Common Stock under the Charter) in accordance with the terms hereof and
thereof (other than any required filings that the Company is permitted to make with the Commission,
the FINRA/NASDAQ or state securities commissions subsequent to the Closing, and, any registration
statement (including any amendment or supplement thereto) or any other filing or consent which may
be filed pursuant to this Agreement, the Registration Rights Agreement or the Warrant); provided
that, for purposes of the representation made in this sentence, the Company is assuming and relying
upon the accuracy of the relevant representations and agreements of the Investor herein.
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Section 4.6 Commission Documents, Financial Statements.
(a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
since December 31, 2008 the Company has timely filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Commission pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to Section 13(a) or 15(d) of
the Exchange Act (all of the foregoing, and, for the purpose of determining the Companys
compliance with Section 7.1 hereof, any such reports, schedules, forms, statements and other
documents filed with the Commission and publicly available after the date hereof but on or prior to
the applicable Condition Satisfaction Date, including filings incorporated by reference, being
referred to herein as the Commission Documents). Except as previously disclosed to the
Investor in writing, since December 31, 2008 the Company has maintained all requirements for the
continued listing or quotation of its Common Stock, and such Common Stock is currently listed or
quoted on the NASDAQ Capital Market. The Company has made available (including through the
Commissions IDEA filing system) to the Investor true and complete copies of the Commission
Documents filed with the Commission since December 31, 2008 and prior to the Closing Date. The
Company has not provided to the Investor any information which, according to applicable law, rule
or regulation, should have been disclosed publicly by the Company but which has not been so
disclosed, other than with respect to the transactions contemplated by this Agreement. As of the
date it was filed with the Commission, the Companys Annual Report on Form 10-K for the year ended
December 31, 2008 complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder then-applicable to such
document, and, as of the date it was filed with the Commission, after giving effect to the
information disclosed and incorporated by reference therein, to the Companys Knowledge such Annual
Report on Form 10-K did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. As of their respective
dates, to the Companys Knowledge the financial statements, together with the related notes and
schedules thereto, of the Company included in the Commission Documents filed with the Commission
since December 31, 2008 complied as to form in all material respects with all then-applicable
accounting requirements and the published rules and regulations of the Commission or other
then-applicable rules and regulations with respect thereto. Such financial statements, together
with the related notes and schedules thereto, have been prepared in accordance with generally
accepted accounting principles (GAAP) applied on a consistent basis during the periods
involved (except (i) as may be otherwise indicated in such financial statements or the notes
thereto or (ii) in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements), and fairly present in all material respects
the financial condition of the Company and its subsidiaries as of the dates thereof and the results
of operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
(b) The Company has timely filed with the Commission and made available to the Investor via
IDEA or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14
under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002
(SOXA)) with respect to all relevant Commission Documents.
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The Company is in compliance in all material respects with the provisions of SOXA applicable
to it as of the date hereof. The Company maintains disclosure controls and procedures required by
Rule 13a-15 or Rule 15d-15 under the Exchange Act. As used in this Section 4.6(b), the term file
shall be broadly construed to include any manner in which a document or information is furnished,
supplied or otherwise made available to the Commission.
Section 4.7 No Material Adverse Change. Except as disclosed in the Commission
Documents, as previously disclosed to the Investor in the Disclosure Schedule or as disclosed in a
publicly available press release of the Company, since December 31, 2008 no event or series of
events has or have occurred that would, individually or in the aggregate, have a Material Adverse
Effect on the Company.
Section 4.8 No Undisclosed Liabilities. To the Companys Knowledge, neither the
Company nor any of its subsidiaries has any liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that
would be required to be disclosed on a balance sheet of the Company or any subsidiary (including
the notes thereto) in conformity with GAAP and are not disclosed in the Commission Documents, other
than those incurred in the ordinary course of the Companys or its subsidiaries respective
businesses since December 31, 2008 or which, individually or in the aggregate, do not or would not
have a Material Adverse Effect on the Company.
Section 4.9 No Undisclosed Events or Circumstances. Except as previously disclosed to
the Investor in writing, to the Companys Knowledge, no event or circumstance has occurred or
exists with respect to the Company or its subsidiaries or their respective businesses, properties,
operations or financial condition, which, under applicable law, rule or regulation, requires public
disclosure or announcement by the Company but which has not been so publicly announced or disclosed
and which, individually or in the aggregate, would have a Material Adverse Effect on the Company.
Section 4.10 Actions Pending. There is no action, suit, claim, investigation or
proceeding pending or, to the Knowledge of the Company, threatened against the Company or any
subsidiary which questions the validity of this Agreement or the transactions contemplated hereby
or any action taken or to be taken pursuant hereto or thereto. Except as set forth in the
Commission Documents or in the Disclosure Schedule, there is no action, suit, claim, investigation
or proceeding pending or, to the Knowledge of the Company, threatened, against or involving the
Company, any subsidiary or any of their respective properties or assets, or to the Knowledge of the
Company involving any officers or directors, in their capacity as officers or directors, of the
Company or any of its subsidiaries, including, without limitation, any securities class action
lawsuit or stockholder derivative lawsuit, that would be reasonably expected to have a Material
Adverse Effect on the Company. Except as set forth in the Commission Documents or as previously
disclosed to the Investor in writing, no judgment, order, writ, injunction or decree or award has
been issued by or, to the Knowledge of the Company, requested of any court, arbitrator or
governmental agency which would be reasonably expected to result in a Material Adverse Effect.
Section 4.11 Compliance with Law. The business of the Company and its subsidiaries
has been and is presently being conducted in accordance with all applicable federal, state, local
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and foreign governmental laws, rules, regulations and ordinances, except as set forth in the
Commission Documents or such that would not reasonably be expected to cause a Material Adverse
Effect. Except as set forth in the Commission Documents, each of the Company and its subsidiaries
have all franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals necessary for the conduct of their respective businesses as now being
conducted by them, except for such franchises, permits, licenses, consents and other governmental
or regulatory authorizations and approvals, the failure to possess which, individually or in the
aggregate, would not be reasonably expected to have a Material Adverse Effect.
Section 4.12 Certain Fees. Except as expressly set forth in this Agreement, including
Section 10.3 hereof, no brokers, finders or financial advisory fees or commissions will be payable
by the Company or any of its subsidiaries in respect of the transactions contemplated by this
Agreement.
Section 4.13 Disclosure. To the Companys Knowledge, neither this Agreement nor any
other documents, certificates or instruments furnished to the Investor by or on behalf of the
Company or any subsidiary in connection with the transactions contemplated by this Agreement
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements made herein or therein, in the light of the circumstances under which they
were made herein or therein, not misleading.
Section 4.14 Material Non-Public Information. Except for this Agreement and the
transactions contemplated hereby and the Disclosure Schedule, neither the Company nor its employees
have disclosed to the Investor, any material non-public information that, according to applicable
law, rule or regulation, should have been disclosed publicly by the Company prior to the date
hereof but which has not been so disclosed.
Section 4.15 Exemption from Registration; Valid Issuances. Subject to, and in
reliance on, the representations, warranties and covenants made herein by the Investor, the
issuance and sale of the Shares, the Warrant, the Warrant Shares and any Blackout Shares in
accordance with the terms and on the bases of the representations and warranties set forth in this
Agreement, may and shall be properly issued pursuant to Section 4(2), Regulation D and/or any other
applicable federal and state securities laws; provided, however, that at the request of and with
the express agreement of the Investor, the Shares, and under certain circumstances the Warrant
Shares will be delivered to the Investor via book entry through DTC and will not bear legends
noting restrictions as to resale of such Shares under federal and state securities laws, nor will
such Shares be subject to stop transfer instructions. Neither the sales of the Shares, the
Warrant, the Warrant Shares or any Blackout Shares pursuant to, nor the Companys performance of
its obligations under, this Agreement, the Registration Rights Agreement, or the Warrant shall (i)
result in the creation or imposition of any liens, charges, claims or other encumbrances upon the
Shares, the Warrant Shares or any Blackout Shares, or (ii) except as previously disclosed to the
Investor in writing, entitle the holders of any outstanding shares of capital stock of the Company
to preemptive or other rights to subscribe to or acquire the shares of Common Stock or other
securities of the Company.
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Section 4.16 Form S-3 Eligibility. As of the date hereof, the Company qualifies to
register the Shares and the Warrant Shares for resale by the Investor on Form S-3 promulgated by
the Commission, without reliance on General Instruction I.B.6. thereof, and the Company is not
subject to any volume limitations imposed by the Securities Act or the Commission in respect of
such registration, it being acknowledged that the Company may be subject to the shareholder
approval rules of the Principal Market.
Section 4.17 No General Solicitation or Advertising in Regard to this Transaction.
Except for such registration statements to be filed as contemplated herein or in the Registration
Rights Agreement, neither the Company nor any of its affiliates or any Person acting on its or
their behalf (i) has conducted any general solicitation (as that term is used in Rule 502(c) of
Regulation D) or general advertising with respect to any of the Shares, the Warrant, the Warrant
Shares or any Blackout Shares or (ii) has made any offers or sales of any security or solicited any
offers to buy any security under any circumstances that would require registration of the Shares
under the Securities Act.
Section 4.18 No Integrated Offering. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, other than pursuant to this Agreement,
the Registration Statement and the Prospectus, and employee benefit plans, under circumstances that
would require registration under the Securities Act of shares of the Common Stock issuable
hereunder with any other offers or sales of securities of the Company.
Section 4.19 Acknowledgment Regarding Investors Purchase of Shares. The Company
acknowledges and agrees that the Investor is acting solely in the capacity of an arms length
investor with respect to this Agreement and the transactions contemplated hereunder. The Company
further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereunder and any advice given by the Investor or any of its representatives or agents
in connection with this Agreement and the transactions contemplated hereunder is merely incidental
to the Investors purchase of the Shares.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
The Investor hereby makes the following representations, warranties and covenants to the
Company:
Section 5.1 Organization and Standing of the Investor. The Investor is a company duly
organized, validly existing and in good standing under the laws of the British Virgin Islands.
Section 5.2 Authorization and Power. The Investor has the requisite power and
authority to enter into and perform its obligations under this Agreement, the Warrant and the
Registration Rights Agreement and to purchase the Shares, any Blackout Shares, the Warrant and the
Warrant Shares in accordance with the terms hereof and thereof. The execution, delivery and
performance of this Agreement, the Warrant and the Registration Rights Agreement by
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Investor and the consummation by it of the transactions contemplated hereby or thereby have
been duly authorized by all necessary corporate action, and no further consent or authorization of
the Investor, its Board of Directors or stockholders is required. Each of this Agreement and the
Registration Rights Agreement has been duly executed and delivered by the Investor and constitutes
a valid and binding obligation of the Investor enforceable against the Investor in accordance with
its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership, or similar laws relating
to, or affecting generally the enforcement of creditors rights and remedies or indemnification or
by other equitable principles of general application (including any limitation of equitable
remedies).
Section 5.3 No Conflicts. The execution, delivery and performance of this Agreement,
the Registration Rights Agreement, the Warrant and any other document or instrument contemplated
hereby and thereby, by the Investor and the consummation of the transactions contemplated hereby
and thereby do not (i) violate any provision of the Investors charter documents or bylaws, (ii)
conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond,
license, lease agreement, instrument or obligation to which the Investor is a party, (iii) create
or impose a lien, charge or encumbrance on any property of the Investor under any agreement or any
commitment to which the Investor is a party or by which the Investor is bound or by which any of
its respective properties or assets are bound, (iv) result in a violation of any federal, state,
local or foreign statute, rule, regulation, order, writ, judgment or decree (including federal and
state securities laws and regulations) applicable to the Investor or by which any property or asset
of the Investor are bound or affected, or (v) require the consent of any third-party that has not
been obtained pursuant to any material contract to which Investor is subject or to which any of its
assets, operations or management may be subject. The Investor is not required under applicable
federal, state, foreign or local law, rule or regulation to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental agency in order for it
to execute, deliver or perform any of its obligations under this Agreement, the Registration Rights
Agreement or the Warrant or to purchase or acquire the Shares, the Warrant, the Warrant Shares or
any Blackout Shares in accordance with the terms hereof, provided that, for purposes of the
representation made in this sentence, the Investor is assuming and relying upon the accuracy of the
relevant representations and agreements of the Company herein.
Section 5.4 Financial Capability. The Investor has the financial capability to
perform all of its obligations under this Agreement, the Registration Rights Agreement and the
Warrant, including the capability to purchase the Shares, the Warrant, the Warrant Shares and any
Blackout Shares in accordance with the terms hereof and thereof. The Investor has such knowledge
and experience in business and financial matters that it is capable of evaluating the merits and
risks of an investment in Common Stock and the Warrant. The Investor is an accredited
investor as defined in Regulation D. The Investor is a sophisticated investor as
described in Rule 506(b)(2)(ii) of Regulation D. The Investor acknowledges that an investment in
the Common Stock and the Warrant is speculative and involves a high degree of risk.
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Section 5.5 Information. The Investor and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares, any Blackout Shares, the Warrant and the Warrant
Shares which have been requested by the Investor. The Investor has reviewed or received copies of
the Commission Documents. The Investor and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. The Investor has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment decision with respect to
its acquisition of the Shares, any Blackout Shares, the Warrant and the Warrant Shares. The
Investor understands that it (and not the Company) shall be responsible for its own tax liabilities
that may arise as a result of this investment or the transactions contemplated by this Agreement.
Section 5.6 Trading Restrictions. The Investor covenants that during the Commitment
Period, neither the Investor nor any of its affiliates nor any entity managed or controlled by the
Investor will (i) enter into or execute or cause or assist any Person to enter into or execute any
short sale (as such term is defined in Rule 200 of Regulation SHO, or any successor
regulation, promulgated by the Commission under the Exchange Act) of any securities of the Company
or (ii) engage, through related parties or otherwise, in any derivative transaction directly
related to shares of Common Stock (including, without limitation, the purchase of any option or
contract to sell) except during the term of a Draw Down Pricing Period with respect to Shares that
the Investor purchased pursuant to the Draw Down pertaining to such Draw Down Pricing Period, and
that the Investor and its affiliates shall comply with all other applicable laws. Subject to
clause (i) above, the Investor shall have the right during any Draw Down Pricing Period to sell
shares of Common Stock equal in number to the aggregate number of the Shares purchased pursuant to
the Draw Down pertaining to such Draw Down Pricing Period.
Section 5.7 Statutory Underwriter Status. The Investor acknowledges that, pursuant to
the Commissions current interpretations of the Securities Act, the Investor will be disclosed as
an underwriter within the meaning of the Securities Act in the Registration Statement
(and amendments thereto) and in any Prospectus contained therein to the extent required by
applicable law and to the extent such Prospectus is related to the resale of Registrable
Securities.
Section 5.8 Not an Affiliate. The Investor is not an officer, director or
affiliate (as defined in Rule 405 of the Securities Act) of the Company.
Section 5.9 Manner of Sale. At no time was the Investor presented with or solicited
by or through any leaflet, public promotional meeting, television advertisement or any other form
of general solicitation or advertising by or on behalf of the Company.
Section 5.10 Prospectus Delivery. The Investor agrees that unless the Shares, the
Warrant Shares or any Blackout Shares are eligible for resale pursuant to all the conditions of
Rule 144, it will resell the Shares, the Warrant Shares and any Blackout Shares only pursuant to
the Registration Statement, in a manner described under the caption Plan of Distribution
in the Registration Statement, and in a manner in compliance with all applicable securities laws,
including, without limitation, any applicable prospectus delivery requirements of the Securities
Act and the insider trading restrictions of the Exchange Act; provided that in no event shall the
Company be under any obligation to the Investor to supplement the Prospectus to reflect the
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issuance of any Shares pursuant to a Draw Down at any time prior to the day following the last
Settlement Date with respect to such Draw Down.
ARTICLE VI
COVENANTS OF THE COMPANY
The Company covenants with the Investor as follows, which covenants are for the benefit of the
Investor and its permitted assignees (as defined herein):
Section 6.1 Securities Compliance. The Company shall notify the Commission and the
Principal Market, if and as applicable, in accordance with their respective rules and regulations,
of the transactions contemplated by this Agreement, and shall use commercially reasonable efforts
to take all other necessary action and proceedings as may be required and permitted by applicable
law, rule and regulation, for the legal and valid issuance of the Shares, the Warrant Shares and
the Blackout Shares, if any, to the Investor, provided that in no event shall the Company be under
any obligation to the Investor hereunder to supplement the Prospectus to reflect the issuance of
any Shares pursuant to a Draw Down at any time prior to the date following the Settlement Date with
respect to such Shares. Each Commission Document to be filed with the Commission after the Closing
Date and incorporated by reference in the Registration Statement and Prospectus, when such document
becomes effective or is filed with the Commission, as the case may be, shall comply in all material
respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other
federal, state and local laws, rules and regulations applicable to it, and shall not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
Section 6.2 Reservation of Common Stock. As of the date hereof, the Company has
available and the Company shall reserve and keep available at all times, free of preemptive rights
and other similar contractual rights of stockholders, shares of Common Stock for the purpose of
enabling the Company to satisfy any obligation to issue the Shares in connection with all Draw
Downs contemplated hereunder and the Warrant Shares. The number of shares so reserved from time to
time, as theretofore increased or reduced as hereinafter provided, may be reduced by the number of
shares actually delivered hereunder.
Section 6.3 Registration and Listing. During the Commitment Period, the Company shall
use commercially reasonable efforts to: (i) take all action necessary to cause its Common Stock to
continue to be registered under Section 12(b) or 12(g) of the Exchange Act, (ii) comply in all
material respects with its reporting and filing obligations under the Exchange Act, (iii) prevent
the termination or suspension of such registration, or the termination or suspension of its
reporting and filing obligations under the Exchange Act or Securities Act (except as expressly
permitted herein). The Company shall use commercially reasonable efforts to maintain the listing
and trading of its Common Stock and the listing of the Shares purchased by Investor hereunder on
the Principal Market (including, without limitation, maintaining sufficient net tangible assets)
and will comply in all material respects with the Companys reporting, filing and other obligations
under the bylaws or rules of the FINRA and the Principal Market. The Company will not be required
to carry out any action pursuant to this Agreement, the Registration Rights Agreement or the
Warrant that would adversely impact the listing of the
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Companys securities on the Principal Market, which Principal Market may be changed by the
Company in the future in the Companys discretion.
Section 6.4 Registration Statement. Without the prior written consent of the
Investor, the Registration Statement shall be used solely in connection with the transactions
between the Company and the Investor contemplated hereby or in connection with any other offering
of the Companys securities described under the caption Plan of Distribution in the
Registration Statement.
Section 6.5 Compliance with Laws.
(a) The Company shall comply, and cause each subsidiary to comply, with all applicable laws,
rules, regulations and orders, noncompliance with which would reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing, neither the Company nor
any of its officers, directors or affiliates will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company, or which would in
the future reasonably be expected to cause or result in, stabilization or manipulation of the price
of any security of the Company, in each case in contravention of applicable laws, rules regulations
or orders.
(b) Without the consent of its stockholders in accordance with FINRA and The NASDAQ Stock
Market LLC rules, the Company will not be obligated to issue, and the Investor will not be
obligated to purchase, any Shares or Blackout Shares which would result in the issuance under this
Agreement, the Warrant and the Registration Rights Agreement of Shares, Warrant Shares and Blackout
Shares (collectively) representing more than the applicable percentage under the rules of the FINRA
and The NASDAQ Stock Market LLC, including, without limitation, NASDAQ Marketplace Rule 4350(i),
that would require stockholder approval of the issuance thereof. Nothing herein shall compel the
Company to seek such consent of its stockholders. In addition, the Company will not be obligated
to issue, and the Investor will not be obligated to purchase, any Shares, Warrant Shares or
Blackout Shares if as a result of the acquisition of such Shares, Warrant Shares and/or Blackout
Shares, the Company would be required to file any notification or report forms under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Nothing herein shall compel the
Company to file such notification and report forms.
Section 6.6 Other Financing. Nothing in this Agreement shall be construed to restrict
the right of the Company to offer, sell and/or issue securities of any kind whatsoever, provided
such transaction is not a Prohibited Transaction (as defined below) (any such transaction that is
not a Prohibited Transaction is referred to in this Agreement as a Permitted
Transaction). Without limiting the generality of the preceding sentence, the Company may,
without the prior written consent of the Investor, (i) establish stock option, stock purchase,
stock bonus or other equity incentive or award plans or agreements (for directors, employees,
consultants and/or advisors), and issue securities thereunder, and amend such plans or agreements,
including increasing the number of shares available thereunder, (ii) issue equity securities to
finance, or otherwise in connection with, the acquisition, license or sale of one or more other
companies, equipment, technologies or lines of business, (iii) issue shares of Common Stock and/or
other securities in connection with the Companys option, equity incentive or award plans, stock
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purchase plans, stock bonus programs, rights plans, warrants or options, (iv) issue shares of
Common Stock and/or other securities in connection with the acquisition, license or sale of
products, licenses, equipment or other assets and strategic collaborations, partnerships, joint
ventures or similar transactions; (v) issue shares of Common and/or other securities to employees,
consultants and/or advisors as consideration for services rendered or to be rendered, (vi) issue
and sell equity or debt securities in a public offering, (vii) issue and sell any equity or debt
securities in a private placement (other than in connection with any Prohibited Transaction),
(viii) issue equity securities to equipment lessors, equipment vendors, banks or similar lending
institutions in connection with leases or loans, or in connection with strategic commercial or
licensing transactions, (ix) issue securities in connection with any stock split, stock dividend,
recapitalization, reclassification or similar event by the Company and (x) issue shares of Common
Stock to the Investor under any other agreement entered into between the Investor and the Company.
Section 6.7 Prohibited Transactions. Except as set forth on Schedule 6.7 of the
Disclosure Schedule and except as permitted by Section 6.6, during the term of this Agreement, the
Company shall not enter into any Prohibited Transaction without the prior written consent of the
Investor, which consent may be withheld at the sole discretion of the Investor. For the purposes
of this Agreement, the term Prohibited Transaction shall refer to the issuance by the
Company of any future priced securities, which shall mean the issuance of shares of Common Stock
or securities of any type whatsoever that are, or may become, convertible or exchangeable into
shares of Common Stock where the purchase, conversion or exchange price for such Common Stock is
determined using any floating discount or other post-issuance adjustable discount to the market
price of Common Stock, including, without limitation, pursuant to any equity line or other
financing, including, without limitation, any financing that is substantially similar to the
financing provided for under this Agreement, provided that any future issuance by the Company of
(i) a convertible security (Convertible Security) that (A) contains provisions that
adjust the conversion price of such Convertible Security in the event of stock splits, dividends,
distributions, reclassifications or similar events or pursuant to anti-dilution provisions or (B)
is issued in connection with the Company obtaining debt financing for research and development
purposes where the issuance of Convertible Securities is conditioned upon the Company meeting
certain defined clinical milestones, (ii) securities in a registered direct public offering or an
unregistered private placement where the price per share of such securities is fixed concurrently
with the execution of definitive documentation relating to the offering or placement, as applicable
and (iii) securities issued in connection with a secured debt financing, shall not be a Prohibited
Transaction.
Section 6.8 Corporate Existence. The Company shall take all steps necessary to
preserve and continue the corporate existence of the Company; provided, however, that nothing in
this Agreement shall be deemed to prohibit the Company from engaging in any Excluded Merger or Sale
with another Person, subject to the terms of the Warrant.
Section 6.9 Non-Disclosure of Non-Public Information. Subject to Section 6.10 below,
except as otherwise expressly provided in this Agreement, the Registration Rights Agreement or the
Warrant, none of the Company, its officers, directors, employees nor agents shall disclose material
non-public information to the Investor, its advisors or representatives.
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Section 6.10 Notice of Certain Events Affecting Registration; Suspension of Right to
Request a Draw Down. The Company shall promptly notify the Investor upon the occurrence of any
of the following events in respect of the Registration Statement or the Prospectus related to the
offer, issuance and sale of the Shares and the Warrant Shares hereunder: (i) receipt of any request
for material additional information by the Commission or any other federal or state governmental
authority or for amendments or supplements to the Registration Statement or the Prospectus (to the
extent related to the resale of Registrable Securities) during the period of effectiveness of the
Registration Statement; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose; and (iii) receipt of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company shall use commercially reasonable
efforts to obtain the withdrawal of such order at the earliest possible time. The Company shall
not be required to disclose to the Investor the substance or specific reasons of any of the events
set forth in clauses (i) through (iii) of the first sentence of this Section 6.10, only that the
event has occurred. The Company shall not request a Draw Down during the continuation of any of
the foregoing events.
Section 6.11 Amendments to the Registration Statement. After the Registration
Statement has been declared effective by the Commission, (a) the Company shall not file any
amendment to the Registration Statement or make any amendment or supplement to the Prospectus (to
the extent related to the resale of Registrable Securities) of which the Investor shall not have
been previously or be simultaneously advised; provided, however, that the Company shall, to the
extent it deems advisable, and without the prior consent of or notice to the Investor, supplement
the Prospectus within two Trading Days following the Settlement Date for each Draw Down solely to
reflect the issuance of Shares with respect to such Draw Down; and provided further that the
Company need not advise the Investor regarding any supplement the purpose of which is to update the
Registration Statement and the Prospectus to include information the Company has previously filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and (b) so long as, in the
reasonable opinion of counsel for the Investor, a Prospectus is required to be delivered in
connection with sales of the Shares by the Investor, if the Company files any information,
documents or reports that are incorporated by reference in the Registration Statement pursuant to
the Exchange Act, the Company shall, if requested in writing by the Investor, deliver a copy of
such information, documents or reports to the Investor promptly following such filing to the extent
such information, documents or reports are not available on the Commissions IDEA filing system.
Section 6.12 Prospectus Delivery. From time to time for such period as in the
reasonable opinion of counsel for the Investor a prospectus is required by the Securities Act to be
delivered in connection with sales by the Investor, the Company will expeditiously deliver to the
Investor, without charge, as many copies of the Prospectus (and of any amendment or supplement
thereto related to sales by the Investor) as the Investor may reasonably request. Subject to the
Registration Rights Agreement, the Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the
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Securities Act and state securities laws in connection with the offering and sale of the
Shares and the Warrant Shares and for such period of time thereafter as the Prospectus is required
by the Securities Act to be delivered in connection with sales of the Shares and the Warrant
Shares. Notwithstanding the foregoing, in no event shall the Company be under any obligation to
supplement the Prospectus or to reflect the issuance of any Shares pursuant to a Draw Down or
deliver any Prospectus as so supplemented at any time prior to the Trading Day following the
Settlement Date with respect to such Shares.
ARTICLE VII
CONDITIONS TO THE OBLIGATION OF THE INVESTOR
TO ACCEPT A DRAW DOWN
The obligation of the Investor hereunder to accept a Draw Down Notice and to acquire and pay
for the Shares in accordance therewith is subject to the satisfaction or waiver, at each Condition
Satisfaction Date, of each of the conditions set forth below, provided that the condition set forth
in Section 7.11 need only be satisfied at the first Condition Satisfaction Date. Other than those
conditions set forth in Section 7.12 which are for the Companys sole benefit and may be waived by
the Company at any time in its sole discretion, the conditions are for the Investors sole benefit
and may be waived by the Investor at any time in its sole discretion. As used in this Agreement,
the term Condition Satisfaction Date shall mean, with respect to each Draw Down, the date
on which the applicable Draw Down Notice is delivered to the Investor, each Trading Day of the
applicable Draw Down Pricing Period and each Settlement Date.
Section 7.1 Accuracy of the Companys Representations and Warranties. Each of the
representations and warranties of the Company shall be true and correct in all material respects as
of the date when made as though made at that time except for representations and warranties that
are expressly made as of a particular date.
Section 7.2 Performance by the Company. The Company shall have, in all material
respects, performed, satisfied and complied with all covenants, agreements and conditions required
by this Agreement, the Registration Rights Agreement and the Warrant to be performed, satisfied or
complied with by the Company on or prior to the applicable Condition Satisfaction Date.
Section 7.3 Compliance with Law. The Company shall have complied in all respects with
all applicable federal, state and local governmental laws, rules, regulations and ordinances in
connection with the execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby except for any failures to so comply which would not be
reasonably expected to have a Material Adverse Effect.
Section 7.4 Effective Registration Statement. Upon the terms and subject to the
conditions set forth in the Registration Rights Agreement, the Registration Statement shall have
previously become effective and shall remain effective and (i) neither the Company nor the Investor
shall have received notice that the Commission has issued or intends to issue a stop order with
respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn
the effectiveness of the Registration Statement, either temporarily or permanently, or intends or
has threatened to do so (unless the Commissions concerns have been addressed
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and the Investor is reasonably satisfied that the Commission no longer is considering or
intends to take such action), and (ii) no other suspension of the use or withdrawal of the
effectiveness of the Registration Statement or the Prospectus shall exist.
Section 7.5 No Knowledge. The Company shall have no Knowledge of any event that could
reasonably be expected to have the effect of causing the Registration Statement with respect to the
resale of the Registrable Securities by the Investor to be suspended or otherwise ineffective
(which event is reasonably likely to occur within eight Trading Days following the Trading Day on
which a Draw Down Notice is delivered) as of the Settlement Date.
Section 7.6 No Suspension. Trading in the Companys Common Stock shall not have been
suspended by the Commission, the Principal Market or the FINRA and trading in securities generally
as reported on the Principal Market shall not have been suspended or limited as of the Condition
Satisfaction Date.
Section 7.7 No Injunction. No statute, rule, regulation, order, decree, writ, ruling
or injunction shall have been enacted, entered, promulgated, endorsed or, to the Knowledge of the
Company, threatened by any court or governmental authority of competent jurisdiction which
prohibits the consummation of or which would materially modify or delay any of the transactions
contemplated by this Agreement.
Section 7.8 No Proceedings or Litigation. No action, suit or proceeding before any
arbitrator or any court or governmental authority shall have been commenced or, to the Knowledge of
the Company, threatened, and, to the Knowledge of the Company no inquiry or investigation by any
governmental authority shall have been threatened, against the Company or any subsidiary, or any of
the officers, directors or affiliates of the Company or any subsidiary, seeking to enjoin, prevent
or change the transactions contemplated by this Agreement, or seeking material damages in
connection with such transactions.
Section 7.9 Sufficient Shares Registered for Resale. The Company shall have
sufficient Shares, calculated using the Closing Price of the Common Stock as of the Trading Day
immediately preceding the applicable Draw Down Notice, registered under the Registration Statement
to issue and sell such Shares in accordance with such Draw Down Notice.
Section 7.10 Warrant. The Company shall not be in default in any material respect
under any of the provisions of the Warrant, it being acknowledged and agreed that any refusal by or
failure of the Company to issue and deliver Warrant Shares in respect of any exercise (in whole or
in part) thereof shall be deemed to be material for the purposes of this Section 7.10.
Section 7.11 Opinion of Counsel. The Investor shall have received the form of opinion
mutually agreed upon between the parties on the date of this Agreement, a specimen of which has
been delivered by counsel to the Investor to counsel to the Company.
Section 7.12 Accuracy of Investors Representation and Warranties. Each of the
representations and warranties of the Investor shall be true and correct in all material respects
as of the date when made as though made at that time except for representations and warranties that
are made as of a particular date.
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ARTICLE VIII
TERMINATION
Section 8.1 Term. Unless otherwise terminated in accordance with Section 8.2 below,
this Agreement shall terminate upon the earlier to occur of (i) the expiration of the Commitment
Period or (ii) the issuance of Shares pursuant to this Agreement in an amount equal to the Maximum
Commitment Amount.
Section 8.2 Other Termination.
(a) The Investor may terminate this Agreement upon (x) one (1) Trading Days notice if the
Company enters into any Prohibited Transaction as set forth in Section 6.7 without the Investors
prior written consent, or (y) one (1) Trading Days notice if the Investor provides written notice
of a Material Adverse Effect to the Company, and such Material Adverse Effect continues for a
period of ten (10) Trading Days after the receipt by the Company of such notice.
(b) The Investor may terminate this Agreement upon one (1) Trading Days notice to the Company
at any time in the event that the Registration Statement is not initially declared effective in
accordance with the Registration Rights Agreement, provided, however, that in the event the
Registration Statement is declared effective prior to the delivery of such notice, the Investor
shall thereafter have no right to terminate this Agreement pursuant to this Section 8.2(b).
(c) The Company may terminate this Agreement upon one (1) Trading Days notice; provided,
however, that the Company shall not terminate this Agreement pursuant to this Section 8.2(c) during
any Draw Down Pricing Period; provided further, that, in the event of any termination of this
Agreement by the Company pursuant to this Section 8.2(c), so long as the Investor owns Shares
purchased hereunder and/or Warrant Shares, unless all of such shares of Common Stock may be resold
by the Investor without registration and without any time, volume or manner limitations pursuant to
Rule 144(b) (or any similar provision then in effect) under the Securities Act, the Company shall
not suspend or withdraw the Registration Statement or otherwise cause the Registration Statement to
become ineffective, or voluntarily delist the Common Stock from, the Principal Market without
listing the Common Stock on another Principal Market.
(d) Each of the parties hereto may terminate this Agreement upon one (1) Trading Days notice
if the other party has breached a material representation, warranty or covenant to this Agreement
and such breach is not remedied within ten (10) Trading Days after notice of such breach is
delivered to the breaching party.
Section 8.3 Effect of Termination. In the event of termination by the Company or the
Investor, written notice thereof shall forthwith be given to the other party and the transactions
contemplated by this Agreement shall be terminated without further action by either party. If this
Agreement is terminated as provided in Section 8.1 or 8.2 herein, this Agreement shall become void
and of no further force and effect, except as provided in Section 10.13. Nothing in this Section
8.3 shall be deemed to release the Company or the Investor from any liability for any
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breach under this Agreement occurring prior to such termination, or to impair the rights of
the Company and the Investor to compel specific performance by the other party of its obligations
under this Agreement arising prior to such termination.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Indemnification.
(a) Except as otherwise provided in this Article IX, unless disputed as set forth in Section
9.2, the Company agrees to indemnify, defend and hold harmless the Investor and its affiliates and
their respective officers, directors, agents, employees, subsidiaries, partners, members and
controlling persons (each, an Investor Indemnified Party), to the fullest extent
permitted by law from and against any and all Damages directly resulting from or directly arising
out of any breach of any representation or warranty, covenant or agreement (except as otherwise
specifically provided) by the Company in this Agreement, the Registration Rights Agreement or the
Warrant; provided, however, that the Company shall not be liable under this Article IX to an
Investor Indemnified Party to the extent that such Damages resulted or arose from the breach by an
Investor Indemnified Party of any representation, warranty, covenant or agreement of an Investor
Indemnified Party contained in this Agreement, the Registration Rights Agreement or the Warrant or
the negligence, recklessness, willful misconduct or bad faith of an Investor Indemnified Party.
The parties intend that any Damages subject to indemnification pursuant to this Article IX will be
net of insurance proceeds (which the Investor agrees to use commercially reasonable efforts to
recover or to cause any Investor Indemnified Party to recover). Accordingly, the amount which the
Company is required to pay to any Investor Indemnified Party hereunder (a Company Indemnity
Payment) will be reduced by any insurance proceeds actually recovered by or on behalf of any
Investor Indemnified Party in reduction of the related Damages. In addition, if an Investor
Indemnified Party receives a Company Indemnity Payment required by this Article IX in respect of
any Damages and subsequently receives any such insurance proceeds, then the Investor will pay, or
will cause such other Investor Indemnified Party to pay, to the Company an amount equal to the
Company Indemnity Payment received less the amount of the Company Indemnity Payment that would have
been due if the insurance proceeds had been received, realized or recovered before the Company
Indemnity Payment was made.
(b) Except as otherwise provided in this Article IX, unless disputed as set forth in Section
9.2, the Investor agrees to indemnify, defend and hold harmless the Company and its affiliates and
their respective officers, directors, agents, employees, subsidiaries, partners, members and
controlling persons (each, a Company Indemnified Party), to the fullest extent permitted
by law from and against any and all Damages directly resulting from or directly arising out of any
breach of any representation or warranty, covenant or agreement by the Investor in this Agreement,
the Registration Rights Agreement or the Warrant; provided, however, that the Investor shall not be
liable under this Article IX to a Company Indemnified Party to the extent that such Damages
resulted or arose from the breach by a Company Indemnified Party of any representation, warranty,
covenant or agreement of a Company Indemnified Party contained in this Agreement, the Registration
Rights Agreement or the Warrant or the negligence,
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recklessness, willful misconduct or bad faith of a Company Indemnified Party. The parties
intend that any Damages subject to indemnification pursuant to this Article IX will be net of
insurance proceeds (which the Company agrees to use commercially reasonable efforts to recover or
to cause any Company Indemnified Party to recover). Accordingly, the amount which the Investor is
required to pay to any Company Indemnified Party hereunder (an Investor Indemnity
Payment) will be reduced by any insurance proceeds theretofore actually recovered by or on
behalf of any Company Indemnified Party in reduction of the related Damages. In addition, if a
Company Indemnified Party receives an Investor Indemnity Payment required by this Article IX in
respect of any Damages and subsequently receives any such insurance proceeds, then the Company
Indemnified Party will pay, or will cause such other Company Indemnified Party to pay, to the
Investor an amount equal to the Investor Indemnity Payment received less the amount of the Investor
Indemnity Payment that would have been due if the insurance proceeds had been received, realized or
recovered before the Investor Indemnity Payment was made.
Section 9.2 Notification of Claims for Indemnification. Each party entitled to
indemnification under this Article IX (an Indemnified Party) shall, promptly after the
receipt of notice of the commencement of any claim against such Indemnified Party in respect of
which indemnity may be sought from the party obligated to indemnify such Indemnified Party under
this Article IX (the Indemnifying Party), notify the Indemnifying Party in writing of the
commencement thereof. Any such notice shall describe the claim in reasonable detail. The failure
of any Indemnified Party to so notify the Indemnifying Party of any such action shall not relieve
the Indemnifying Party from any liability which it may have to such Indemnified Party (a) other
than pursuant to this Article IX or (b) under this Article IX unless, and only to the extent that,
such failure results in the Indemnifying Partys forfeiture of substantive rights or defenses or
the Indemnifying Party is prejudiced by such delay. The procedures listed below shall govern the
procedures for the handling of indemnification claims.
(a) Any claim for indemnification for Damages that do not result from a Third Party Claim as
defined in the following paragraph, shall be asserted by written notice given by the Indemnified
Party to the Indemnifying Party. Such Indemnifying Party shall have a period of thirty (30) days
after the receipt of such notice within which to respond thereto. If such Indemnifying Party does
not respond within such thirty (30) day period, such Indemnifying Party shall be deemed to have
refused to accept responsibility to make payment as set forth in Section 9.1. If such Indemnifying
Party does not respond within such thirty (30) day period or rejects such claim in whole or in
part, the Indemnified Party shall be free to pursue such remedies as specified in this Agreement.
(b) If an Indemnified Party shall receive notice or otherwise learn of the assertion by a
person or entity not a party to this Agreement of any threatened legal action or claim
(collectively a Third Party Claim), with respect to which an Indemnifying Party may be
obligated to provide indemnification, the Indemnified Party shall give such Indemnifying Party
written notice thereof within twenty (20) days after becoming aware of such Third Party Claim.
(c) An Indemnifying Party may elect to defend (and, unless the Indemnifying Party has
specified any reservations or exceptions, to seek to settle or compromise) at such
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Indemnifying Partys own expense and by such Indemnifying Partys own counsel, any Third Party
Claim. Within thirty (30) days after the receipt of notice from an Indemnified Party (or sooner if
the nature of such Third Party Claim so requires), the Indemnifying Party shall notify the
Indemnified Party whether the Indemnifying Party will assume responsibility for defending such
Third Party Claim, which election shall specify any reservations or exceptions. If such
Indemnifying Party does not respond within such thirty (30) day period or rejects such claim in
whole or in part, the Indemnified Party shall be free to pursue such remedies as specified in this
Agreement. In case any such Third Party Claim shall be brought against any Indemnified Party, and
it shall notify the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be
entitled to assume the defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any Indemnified Party may, at
its own expense, retain separate counsel to participate in such defense at its own expense.
Notwithstanding the foregoing, in any Third Party Claim in which both the Indemnifying Party, on
the one hand, and an Indemnified Party, on the other hand, are, or are reasonably likely to become,
a party, such Indemnified Party shall have the right to employ separate counsel and to control its
own defense of such claim if, in the reasonable opinion of counsel to such Indemnified Party,
either (x) one or more significant defenses are available to the Indemnified Party that are not
available to the Indemnifying Party or (y) a conflict or potential conflict exists between the
Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, that would make
such separate representation advisable; provided, however, that in such circumstances the
Indemnifying Party (i) shall not be liable for the fees and expenses of more than one counsel to
all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for such reasonable fees
and expenses of such counsel incurred in any such Third Party Claim, as such expenses are incurred,
provided that the Indemnified Parties agree to repay such amounts if it is ultimately determined
that the Indemnifying Party was not obligated to provide indemnification under this Article IX.
The Indemnifying Party agrees that it will not, without the prior written consent of the
Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or
threatened claim relating to the matters contemplated hereby (if any Indemnified Party is a party
thereto or has been actually threatened to be made a party thereto) unless such settlement,
compromise or consent includes an unconditional release of such Indemnified Party from all
liability arising or that may arise out of such claim. The Indemnifying Party shall not be liable
for any settlement of a claim effected against an Indemnified Party without the Indemnifying
Partys written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
The rights accorded to an Indemnified Party hereunder shall be in addition to any rights that any
Indemnified Party may have at common law, by separate agreement or otherwise; provided, however,
that notwithstanding the foregoing or anything to the contrary contained in this Agreement, nothing
in this Article IX shall restrict or limit any rights that any Indemnified Party may have to seek
equitable relief.
ARTICLE X
MISCELLANEOUS
Section 10.1 Fees and Expenses.
(a) Each of the Company and the Investor agrees to pay its own expenses incident to the
performance of its obligations hereunder, except that the Company shall be solely
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responsible for (i) all reasonable attorneys fees and expenses incurred by the Investor in
connection with the preparation, negotiation, execution and delivery of this Agreement, the
Registration Rights Agreement and the Warrant, and review of the Registration Statement, and in
connection with any amendments, modifications or waivers of this Agreement, (ii) subject in all
cases to Section 10.1(b) hereof, all reasonable fees and expenses incurred in connection with the
Investors enforcement of this Agreement, including, without limitation, all reasonable attorneys
fees and expenses, (iii) ongoing due diligence expenses of the Investor during the term of this
Agreement equal to $12,500 per calendar quarter (other than in respect of any calendar quarter
during which the Company issues and sells Shares to the Investor hereunder with an aggregate in
Draw Down Amounts equal to or exceeding 2% of the Companys Market Capitalization measured as of
the first Trading Day of such calendar quarter), and (iv) all stamp or other similar taxes and
duties, if any, levied in connection with issuance of the Shares pursuant hereto; provided,
however, that in each of the above instances at the reasonable request of the Company the Investor
shall provide customary supporting invoices or similar documentation describing such expenses
(however, the Investor shall not be obligated to provide detailed time sheets for fees and expenses
of counsel unless the aggregate amount of such fees and expenses exceeds $75,000); and provided
further, that the maximum aggregate amount payable by the Company pursuant to clauses (i) and (ii)
above shall be $75,000 and the Investor shall bear all fees and expenses described in clauses (i)
and (ii) above in excess of $75,000.
(b) If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the Registration Rights Agreement or the Warrant, the prevailing party shall be entitled
to reasonable fees, costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
Section 10.2 Reporting Entity for the Common Stock. The reporting entity relied upon
for the determination of the trading price or trading volume of the Common Stock on any given
Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto,
provided that the Closing Price shall be reported by the Principal Market. The written mutual
consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 10.3 Brokerage. Each of the parties hereto represents that it has had no
dealings in connection with this transaction with any finder or broker who will demand payment of
any fee or commission from the other party, except that the Company engaged the services of The
Northstar Group, Inc. in connection with the transaction contemplated hereby and all fees and
expenses due in connection therewith shall be borne by the Company. The Company on the one hand,
and the Investor, on the other hand, agree to indemnify the other against and hold the other
harmless from any and all liabilities to any Persons claiming brokerage commissions or finders
fees on account of services purported to have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated hereby.
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Section 10.4 Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and, unless otherwise specified
herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below
or to such other address as such party shall have specified most recently by written notice given
in accordance herewith, in each case with a copy to the e-mail address set forth beside the
facsimile number for the addressee below. Any notice or other communication required or permitted
to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile,
with accurate confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a Trading Day during normal business hours where such
notice is to be received), or the first Trading Day following such delivery (if delivered other
than on a Trading Day during normal business hours where such notice is to be received) or (b) on
the second Trading Day following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
If to the Company:
Electro-Optical Sciences, Inc.
3 West Main Street, Suite 201
Irvington, New York 10533
Facsimile: 914-591-3701
Attention: Joseph V. Gulfo, M.D., Chief Executive Officer
Email: jvgulfo@eosciences.com
with a copy (which shall not constitute notice) to:
Golenbock Eiseman Assor Bell & Peskoe, LLP
437 Madison Avenue
New York, New York 10022-7302
Facsimile: 212-754-0330
Attention: Valerie A. Price, Esq.
E-mail: vprice@golenbock.com
if to the Investor:
Kingsbridge Capital Limited
Attention: Mr. Antony Gardner-Hillman
P.O. Box 1075
Elizabeth House
9 Castle Street
St. Helier
Jersey
JE42QP
Channel Islands
Telephone: 011-44-1534-636-041
Facsimile: 011-44-1534-636-042
Email: admin@kingsbridgecap.com; and adamgurney@kingsbridgecap.com
- 29 -
with a copy (which shall not constitute notice) to:
Kingsbridge Corporate Services Limited
Kingsbridge House
New Abbey
Kilcullen, County Kildare
Republic of Ireland
Telephone: 011-353-45-481-811
Facsimile: 011-353-45-482-003
Email: adamgurney@kingsbridge.ie; emmagalway@kingsbridge.ie; and
pwhelan@kingsbridge.ie
and another copy (which shall not constitute notice) to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Facsimile: (212) 806-5400
Attention: Keith M. Andruschak, Esq. kandruschak@stroock.com
Either party hereto may from time to time change its contact information for notices under
this Section by giving at least ten (10) days prior written notice of such changed contact
information to the other party hereto.
Section 10.5 Assignment. Neither this Agreement nor any rights of the Investor or the
Company hereunder may be assigned by either party to any other Person.
Section 10.6 Amendment; No Waiver. No party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as specifically set
forth in this Agreement, the Warrant and the Registration Rights Agreement. Except as expressly
provided in this Agreement, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by both parties hereto. The
failure of either party to insist on strict compliance with this Agreement, or to exercise any
right or remedy under this Agreement, shall not constitute a waiver of any rights provided under
this Agreement, nor estop the parties from thereafter demanding full and complete compliance nor
prevent the parties from exercising such a right or remedy in the future.
Section 10.7 Entire Agreement. This Agreement, the Registration Rights Agreement and
the Warrant set forth the entire agreement and understanding of the parties relating to the subject
matter hereof and supersedes all prior and contemporaneous agreements, negotiations and
understandings between the parties, both oral and written, relating to the subject matter hereof.
Section 10.8 Severability. If any provision of this Agreement becomes or is declared
by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall
continue in full force and effect without said provision; provided that, if the severance of such
provision materially changes the economic benefits of this Agreement to either party as such
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benefits are anticipated as of the date hereof, then such party may terminate this Agreement
on five (5) Trading Days prior written notice to the other party. In such event, the Registration
Rights Agreement will terminate simultaneously with the termination of this Agreement; provided
that in the event that this Agreement is terminated by the Company in accordance with this Section
10.8 and the Warrant Shares either have not been registered for resale by the Investor in
accordance with the Registration Rights Agreement or are otherwise not freely tradable (if and when
issued) in accordance with applicable law, then the Registration Rights Agreement in respect of the
registration of the Warrant Shares shall remain in full force and effect.
Section 10.9 Title and Subtitles. The titles and subtitles used in this Agreement are
used for the convenience of reference and are not to be considered in construing or interpreting
this Agreement.
Section 10.10 Counterparts. This Agreement may be executed in multiple counterparts,
each of which may be executed by less than all of the parties and shall be deemed to be an original
instrument which shall be enforceable against the parties actually executing such counterparts and
all of which together shall constitute one and the same instrument.
Section 10.11 Choice of Law. This Agreement shall be construed under the laws of the
State of New York.
Section 10.12 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Investor acknowledge and agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that either party shall be
entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement by the other party and to enforce specifically the terms and provisions hereof or
thereof, this being in addition to any other remedy to which either party may be entitled by law or
equity.
(b) Each of the Company and the Investor (i) hereby irrevocably submits to the jurisdiction of
the United States District Court and other courts of the United States sitting in the State of New
York for the purposes of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Each of the Company and the Investor consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing in this Section 10.12 shall affect
or limit any right to serve process in any other manner permitted by law.
Section 10.13 Survival. The representations and warranties of the Company and the
Investor contained in Articles IV and V and the covenants contained in Article V and Article VI
shall survive the execution and delivery hereof and the Closing until the termination of this
- 31 -
Agreement, and the agreements and covenants set forth in Article VIII and Article IX of this
Agreement shall survive the execution and delivery hereof and the Closing hereunder.
Section 10.14 Publicity. Except as otherwise required by applicable law or
regulation, or NASDAQ rule or judicial process, prior to the Closing, neither the Company nor the
Investor shall issue any press release or otherwise make any public statement or announcement with
respect to this Agreement or the transactions contemplated hereby or the existence of this
Agreement. In the event the Company is required by law, regulation, NASDAQ rule or judicial
process, based upon reasonable advice of the Companys counsel, to issue a press release or
otherwise make a public statement or announcement with respect to this Agreement prior to the
Closing, the Company shall consult with the Investor on the form and substance of such press
release, statement or announcement. Promptly after the Closing, each party may issue a press
release or otherwise make a public statement or announcement with respect to this Agreement or the
transactions contemplated hereby or the existence of this Agreement; provided that, prior to
issuing any such press release, making any such public statement or announcement, the party wishing
to make such release, statement or announcement consults and cooperates in good faith with the
other party in order to formulate such press release, public statement or announcement in form and
substance reasonably acceptable to both parties.
Section 10.15 Further Assurances. From and after the date of this Agreement, upon the
request of the Investor or the Company, each of the Company and the Investor shall execute and
deliver such instruments, documents and other writings as may be reasonably necessary or desirable
to confirm and carry out and to effectuate fully the intent and purposes of this Agreement.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officer as of the date first written.
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KINGSBRIDGE CAPITAL LIMITED
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By: |
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Antony Gardner-Hillman |
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Director |
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ELECTRO-OPTICAL SCIENCES, INC.
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By: |
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Joseph V. Gulfo, M.D. |
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Chief Executive Officer |
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[Signature
Page to Common Stock Purchase Agreement]
Exhibit A
Form of Registration Rights Agreement
Exhibit B
Form of Warrant
Exhibit C
Form of Draw Down Notice
Kingsbridge Capital Limited
Attention: Mr. Tony Hillman
P.O. Box 1075
Elizabeth House
9 Castle Street
St. Helier
Jersey
JE42QP
Channel Islands
Facsimile: 011-44-1534-636-042
Email: admin@kingsbridgecap.com; and adamgurney@kingsbridgecap.com
Kingsbridge Corporate Services Limited
Kingsbridge House
New Abbey
Kilcullen, County Kildare
Republic of Ireland
Facsimile: 011-353-45-482-003
Email: adamgurney@kingsbridge.ie; and pwhelan@kingsbridge.ie
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Facsimile: (212) 806-5400
Attention: Keith M. Andruschak, Esq. kandruschak@stroock.com
Reference is hereby made to that certain Common Stock Purchase Agreement dated as of May ___, 2009
(the Agreement) by and between Electro-Optical Sciences, Inc., a corporation organized and
existing under the laws of the State of Delaware (the Company), and Kingsbridge Capital Limited,
an entity organized and existing under the laws of the British Virgin Islands (the Investor).
Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in
the Agreement.
In accordance with and pursuant to Section 3.1 of the Agreement, the Company hereby issues this
Draw Down Notice to the Investor pursuant to the terms set forth below.
Draw Down Amount: $ ; and
First Trading Day of Draw Down Pricing Period: , 20[_].
Enclosed with this Draw Down Notice is an executed copy of the Officers Certificate described in
Section 3.1 of the Agreement, the base form of which is attached to such Agreement as Exhibit D.
Exhibit D
Officers Certificate
I, [NAME OF OFFICER], do hereby certify to Kingsbridge Capital Limited (the
Investor), with respect to the common stock of Electro-Optical Sciences, Inc. (the
Company) issuable in connection with the Draw Down Notice, dated (the
Notice) attached hereto and delivered pursuant to Article III of the Common Stock
Purchase Agreement, dated May ___, 2009 (the Agreement), by and between the Company and
the Investor, as follows (capitalized terms used but undefined herein have the meanings given to
such terms in the Agreement):
I am the duly elected [OFFICER] of the Company.
The representations and warranties of the Company set forth in Article IV of the Agreement are
true and correct in all material respects as though made on and as of the date hereof (except for
such representations and warranties that are made as of a particular date).
The Company has performed in all material respects all covenants and agreements to be
performed by the Company on or prior to the date hereof related to the Notice and has satisfied
each of the conditions to the obligation of the Investor set forth in Article VII of the Agreement.
Assuming the accuracy of the representations and agreements of the Investor contained in
Section 5.10 of the Agreement, the Shares issuable in respect of the Notice will be delivered
without restrictive legend via book entry through the DTC to an account designated by the Investor.
The undersigned has executed this Certificate this ___day of, 20[_].
Name:
Title:
EX-10.2
Exhibit 10.2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this Agreement), dated as of May 7, 2009, is by
and between ELECTRO-OPTICAL SCIENCES, INC. (the Company) and KINGSBRIDGE CAPITAL LIMITED
(the Investor).
WHEREAS, the Company and the Investor have entered into that certain Common Stock Purchase
Agreement, dated as of the date hereof (the Purchase Agreement), pursuant to which the
Company may issue, from time to time, to the Investor up to $45 million worth of shares of Common
Stock as provided for therein;
WHEREAS, pursuant to the terms of, and in partial consideration for the Investor entering
into, the Purchase Agreement, the Company has issued to the Investor a warrant, exercisable from
time to time, in accordance with its terms, within five (5) years following the six-month
anniversary of the date of issuance (the Warrant) for the purchase of an aggregate of up
to 200,000 shares of Common Stock at a price specified in such Warrant;
WHEREAS, pursuant to the terms of, and in partial consideration for, the Investors agreement
to enter into the Purchase Agreement, the Company has agreed to provide the Investor with certain
registration rights with respect to the Registrable Securities (as defined in the Purchase
Agreement) as set forth herein;
NOW, THEREFORE, in consideration of the premises, the representations, warranties, covenants
and agreements contained herein, in the Warrant, and in the Purchase Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending
to be legally bound hereby, the parties hereto agree as follows (capitalized terms used herein and
not defined herein shall have the respective meanings ascribed to them in the Purchase Agreement):
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Registration Statement.
(a) Filing of the Registration Statement. Upon the terms and subject to the
conditions set forth in this Agreement, the Company shall file with the Commission within sixty
(60) calendar days after the Closing Date an initial registration statement on Form S-3 under the
Securities Act or such other form as deemed appropriate by counsel to the Company and reasonably
acceptable to the Investor for the registration for the resale by the Investor of Registrable
Securities in an amount not to exceed 19.99% of the shares of Common Stock outstanding on the date
hereof (the Registration Statement) for the registration for the resale by the Investor of
Registrable Securities in an amount not to exceed 19.99% of the shares of Common Stock outstanding
on the date hereof (the Registration Statement).
(b) Effectiveness of the Registration Statement. The Company shall use commercially
reasonable efforts (i) to have the Registration Statement declared effective by the Commission as
soon as reasonably practicable, but in any event no later than one hundred
1
twenty(120) calendar days after the Closing Date and (ii) to ensure that the Registration
Statement remains in effect throughout the term of this Agreement as set forth in Section 4.2,
subject to the terms and conditions of this Agreement.
(c) Regulatory Disapproval. The contemplated effective date for the Registration
Statement as described in Section 1.1(b) shall be extended without default or liquidated damages
hereunder or under the Purchase Agreement in the event that the Companys failure to obtain the
effectiveness of the Registration Statement on a timely basis results from (i) the failure of the
Investor to timely provide the Company with information requested by the Company and necessary to
complete the Registration Statement in accordance with the requirements of the Securities Act or
(ii) the Commissions disapproval of the structure of the transactions contemplated by the Purchase
Agreement, or (iii) events or circumstances that are not in any way attributable to the Company.
In the event of clause (ii) above, the parties agree to cooperate with one another in good faith to
arrive at a resolution acceptable to the Commission.
(d) Failure to Maintain Effectiveness of Registration Statement. In the event the
Company fails to maintain the effectiveness of the Registration Statement (or the Prospectus)
throughout the period set forth in Section 4.2, other than temporary suspensions as set forth in
Section 1.1(e), and the Investor holds any Registrable Securities at any time during the period of
such ineffectiveness (an Ineffective Period), and provided that such failure to maintain
effectiveness was within the reasonable control of the Company, the Company shall pay on demand to
the Investor in immediately available funds into an account designated by the Investor an amount
equal to the product of (i) the total number of Registrable Securities issued to the Investor under
the Purchase Agreement (which, for the avoidance of doubt, shall not include any Warrant Shares)
and owned by the Investor at any time during such Ineffective Period (and not otherwise sold,
hypothecated or transferred) and (ii) the result, if greater than zero, obtained by subtracting the
VWAP on the Trading Day immediately following the last day of such Ineffective Period from the VWAP
on the Trading Day immediately preceding the day on which any such Ineffective Period began;
provided, however, that (A) the foregoing payments shall not apply in respect of
Registrable Securities (I) that are otherwise freely tradable by the Investor, including pursuant
to Rule 144 under the Securities Act (as such Rule may be amended from time to time, Rule
144) or (II) if the Company offers to repurchase from the Investor such Registrable Securities
for a per share purchase price equal to the VWAP on the Trading Day immediately preceding the day
on which any such Ineffective Period began and (B) unless otherwise required by any applicable
federal and state securities laws, the Company shall be under no obligation to supplement the
Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at any time prior to the
first Trading Day following the Settlement Date with respect to such Shares and that the failure to
supplement the Prospectus prior to such time shall not be deemed a failure to maintain the
effectiveness of the Registration Statement (or Prospectus) for purposes of this Agreement
(including this Section 1.1(d)).
(e) Deferral or Suspension During a Blackout Period. Notwithstanding the provisions
of Section 1.1(d), if in the good faith judgment of the Company, following consultation with legal
counsel, it would be detrimental to the Company or its stockholders for the Registration Statement
to be filed or for resales of Registrable Securities to be made pursuant to the Registration
Statement due to (i) the existence of a material development or potential
2
material development involving the Company that the Company would be obligated to disclose or
incorporate by reference in the Registration Statement and which the Company has not disclosed, or
which disclosure would be premature or otherwise inadvisable at such time or would have a Material
Adverse Effect on the Company or its stockholders, or (ii) a filing of a Company-initiated
registration of any class of its equity securities, which, in the good faith judgment of the
Company, would adversely affect or require premature disclosure of the filing of such
Company-initiated registration (notice thereof, a Blackout Notice), the Company shall
have the right to (A) immediately defer the filing of the Registration Statement for a period of
not more than sixty (60) days beyond the date by which such Registration Statement was otherwise
required hereunder to be filed or (B) suspend use of such Registration Statement for a period of
not more than thirty (30) days (any such deferral or suspension period, a Blackout
Period). The Investor acknowledges that it would be seriously detrimental to the Company and
its stockholders for such Registration Statement to be filed (or remain in effect) during a
Blackout Period and therefore essential to defer such filing (or suspend the use thereof) during
such Blackout Period and agrees to cease any disposition of the Registrable Securities during such
Blackout Period. The Company may not utilize any of its rights under this Section 1.1(e) to defer
the filing of a Registration Statement (or suspend its effectiveness) more than six (6) times in
any twelve (12) month period. In the event that, within twenty (20) Trading Days following any
Settlement Date, the Company gives a Blackout Notice to the Investor and the VWAP on the Trading
Day immediately preceding such Blackout Period (Old VWAP) is greater than the VWAP on the
first Trading Day following such Blackout Period that the Investor may sell its Registrable
Securities pursuant to an effective Registration Statement (New VWAP), then the Company
shall pay to the Investor, by wire transfer of immediately available funds to an account designated
by the Investor, the Blackout Amount. For the purposes of this Agreement, Blackout Amount means
a percentage equal to: (1) one hundred percent (100%) if such Blackout Notice is delivered prior to
the tenth (10th) Trading Day following such Settlement Date; (2) seventy-five percent (75%) if such
Blackout Notice is delivered on or after the tenth (10th) Trading Day following such Settlement
Date, but prior to the fifteenth (15th) Trading Day following such Settlement Date; (3) fifty
percent (50%) if such Blackout Notice is delivered on or after the fifteenth (15th) Trading Day
following such Settlement Date, but prior to the twentieth (20th) Trading Day following such
Settlement Date; and (4) zero percent (0%) thereafter of: the product of (i) the number of
Registrable Securities purchased by the Investor pursuant to the most recent Draw Down and actually
held by the Investor immediately prior to the Blackout Period and (ii) the result, if greater than
zero, obtained by subtracting the New VWAP from the Old VWAP; provided, however,
that no Blackout Amount shall be payable in respect of Registrable Securities (x) that are
otherwise freely tradable by the Investor, including under Rule 144, during the Blackout Period or
(y) if the Company offers to repurchase from the Investor such Registrable Securities for a per
share purchase price equal to the VWAP on the Trading Day immediately preceding the day on which
any such Blackout Period began. For any Blackout Period in respect of which a Blackout Amount
becomes due and payable, rather than paying the Blackout Amount, the Company may at is sole
discretion, issue
to the Investor shares of Common Stock with an aggregate market value determined
as of the first Trading Day following such Blackout Period equal to the Blackout Amount
(Blackout Shares); provided that the Investor may sell such Blackout Shares pursuant to
an effective Registration Statement.
3
(f) Liquidated Damages. The Company and the Investor hereto acknowledge and agree
that the amounts payable under Sections 1.1(d) and 1.1(e) and the Blackout Shares deliverable under
Section 1.1(e) above shall constitute liquidated damages and not penalties. The parties further
acknowledge that (i) the amount of loss or damages likely to be incurred by the Investor is
incapable or is difficult to precisely estimate, (ii) the amounts specified in such subsections
bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss
likely to be incurred in connection with any failure by the Company to obtain or maintain the
effectiveness of the Registration Statement, (iii) one of the reasons for the Company and the
Investor reaching an agreement as to such amounts was the uncertainty and cost of litigation
regarding the question of actual damages, and (iv) the Company and the Investor are sophisticated
business parties and have been represented by sophisticated and able legal and financial counsel
and negotiated this Agreement at arms length. The Investor agrees that, so long as the Company
makes the payments or deliveries provided for in Sections 1.1(d) or 1.1(e), as applicable, the
Companys failure to maintain the effectiveness, deferral or suspension of the Registration
Statement that triggered such payments or deliveries shall not constitute a material breach or
default of any obligation of the Company to the Investor and such payments or deliveries shall
constitute the Investors sole remedies with respect thereto.
(g) Additional Registration Statements. In the event and to the extent that the
Registration Statement fails to register a sufficient amount of Common Stock necessary for the
Company to issue and sell to the Investor and the Investor to purchase from the Company all of the
Warrant Shares to be issued, sold and purchased under the Warrant, the Company shall, upon a
timetable mutually agreeable to both the Company and the Investor, prepare and file with the
Commission an additional registration statement or statements in order to effectuate the purpose of
this Agreement, the Purchase Agreement, and the Warrant.
ARTICLE II
REGISTRATION PROCEDURES
Section 2.1 Filings; Information. The Company shall effect the registration
with respect to the sale of the Registrable Securities by the Investor in accordance with the
intended methods of disposition thereof. Without limiting the foregoing, the Company in each such
case will do the following as expeditiously as is commercially reasonable, but in no event later
than the deadline, if any, prescribed therefor in this Agreement:
(a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission the
Registration Statement; (ii) use commercially reasonable efforts to cause such filed Registration
Statement to become and to remain effective (pursuant to Rule 415 under the Securities Act or
otherwise); (iii) prepare and file with the Commission such amendments and supplements to the
Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for the time period prescribed by Section 4.2 and in order to
effectuate the purpose of this Agreement, the Purchase Agreement, and the Warrant; and (iv) comply
in all material respects with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during such period in accordance with the
intended methods of disposition by the Investor set forth in such Registration Statement;
provided, however, that the Company shall be under no obligation to supplement the
Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at
4
any time prior to the first Trading Day following the Settlement Date with respect to such
Shares and, provided, further, that the Investor shall be responsible for the
delivery of the Prospectus to the Persons to whom the Investor sells the Shares and the Warrant
Shares, and the Investor agrees to dispose of Registrable Securities in compliance with the plan of
distribution described in the Registration Statement and otherwise in compliance with applicable
federal and state securities laws.
(b) The Company shall deliver to the Investor and its counsel, in accordance with the notice
provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and
supplement thereto (to the extent related to the resale of the Registrable Securities and in each
such case including all exhibits thereto), the Prospectus (including each preliminary prospectus,
and in each case to the extent related to the resale of the Registrable Securities) and such other
documents or information as the Investor or counsel may reasonably request in order to facilitate
the disposition of the Registrable Securities, provided, however, that to the
extent reasonably practicable, such delivery may be accomplished via electronic means.
(c) After the filing of the Registration Statement, the Company shall promptly notify the
Investor of any stop order issued or, to the Knowledge of the Company, threatened by the Commission
in connection therewith and take all commercially reasonable actions required to prevent the entry
of such stop order or to remove it if entered.
(d) The Company shall use commercially reasonable efforts to (i) register or qualify the sale
of the Registrable Securities by the Investor under such other securities or blue sky laws of each
jurisdiction in the United States as the Investor may reasonably (in light of its intended plan of
distribution) request, and (ii) cause the sale of the Registrable Securities by the Investor to be
registered with or approved by such other governmental agencies or authorities in the United States
as may be necessary by virtue of the business and operations of the Company and do any and all
other customary acts and things that may be reasonably necessary or advisable to enable the
Investor to consummate the disposition of the Registrable Securities; provided,
however, that the Company will not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(d),
subject itself to taxation in any such jurisdiction, consent or subject itself to general service
of process in any such jurisdiction, change any existing business practices, benefit plans or
outstanding securities or amend or otherwise modify the Charter or Bylaws.
(e) The Company (i) shall make available to the Investor (and will deliver to the Investors
counsel), subject to restrictions imposed by the United States federal government or any agency or
instrumentality thereof, copies of all public correspondence between the Commission and the Company
concerning the Registration Statement (to the extent relevant to the resale of the Registrable
Securities) and (ii) will also make available for inspection by the Investor and any attorney,
accountant or other professional retained by the Investor and reasonably acceptable to the Company
(collectively, the Inspectors), upon reasonable advance notice during normal business
hours all financial and other records, pertinent corporate documents and properties of the Company
(collectively, the Records) as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Companys officers and employees to supply all
information reasonably requested by any Inspectors in connection with the Registration Statement;
provided, however, that (x) the Company shall not
5
be obligated to disclose any portion of the Records consisting of either (A) material non
public information or (B) confidential information of a third party and (y) any such Inspectors
must agree in writing for the benefit of the Company not to use or disclose any such Records except
as provided in this Section 2.1(e). Records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless the disclosure or release of such Records is requested or required pursuant to
oral questions, interrogatories, requests for information or documents or a subpoena or other order
from a court of competent jurisdiction or other judicial or governmental process; provided,
however, that prior to any disclosure or release pursuant to the immediately preceding
clause, the Inspectors shall provide the Company with prompt notice of any such request or
requirement so that the Company may seek an appropriate protective order or waive such Inspectors
obligation not to disclose such Records; and, provided, further, that if failing the entry of a
protective order or the waiver by the Company permitting the disclosure or release of such Records,
the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may
disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors
are compelled to disclose; provided, however, that upon any such required
disclosure, such Inspector shall use his or her best efforts to obtain reasonable assurances that
confidential treatment will be afforded such information. The Investor agrees that information
obtained by it or any Inspector solely as a result of such inspections (not including any
information obtained from a third party who, insofar as is known to the Investor after reasonable
inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary
obligation to the Company) shall be deemed confidential and shall not be used for any purposes
other than as indicated above or by it or any Inspector as the basis for any market transactions in
the securities of the Company or its affiliates unless and until such information is made generally
available to the public. The Investor further agrees that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(f) The Company shall otherwise comply in all material respects with all applicable rules and
regulations of the Commission, including, without limitation, compliance with applicable reporting
requirements under the Exchange Act.
(g) The Company shall appoint (or shall have appointed) a transfer agent and registrar for all
of the Common Stock covered by such Registration Statement not later than the effective date of
such Registration Statement.
(h) The Investor shall cooperate with the Company, as reasonably requested by the Company, in
connection with the preparation and filing of any Registration Statement hereunder. The Company
may require the Investor to promptly furnish in writing to the Company such information as may be
required in connection with such registration including, without limitation, all such information
as may be requested by the Commission, the NASDAQ Stock Market or FINRA or any state securities
commission and all such information regarding the Investor, the Registrable Securities held by the
Investor and the intended method of disposition of the Registrable Securities. The Investor agrees
to provide such information requested in connection with such registration within five (5) business
days after receiving such
6
written request and the Company shall not be responsible for, or incur any penalties under
this Agreement with respect to, any delays in obtaining or maintaining the effectiveness of the
Registration Statement caused by the Investors failure to timely provide such information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately
discontinue disposition of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has
terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if
necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in
the Investors possession (other than a limited number of file copies) of the prospectus covering
such Registrable Securities that is current at the time of receipt of such notice.
Section 2.2 Registration Expenses. Except as set forth in Section 10.1 of the
Purchase Agreement, the Company shall pay all registration expenses incurred in connection with the
Registration Statement (the Registration Expenses), including, without limitation: (a)
all registration, filing, securities exchange listing and fees required by the NASDAQ Stock Market,
(b) all registration, filing, qualification and other fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities), (c) all of the Companys word
processing, duplicating, printing, messenger and delivery expenses, (d) the Companys internal
expenses (including, without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), (e) the fees and expenses incurred by the Company in
connection with the listing of the Registrable Securities, (f) reasonable fees and disbursements of
counsel for the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any special audits or comfort
letters or costs associated with the delivery by independent certified public accountants of such
special audit(s) or comfort letter(s), (g) the fees and expenses of any special experts retained by
the Company in connection with such registration and amendments and supplements to the Registration
Statement and Prospectus, and (h) premiums and other costs of the Company for policies of insurance
against liabilities of the Company arising out of any public offering of the Registrable Securities
being registered, to the extent that the Company in its discretion elects to obtain and maintain
such insurance. Any fees and disbursements of underwriters, broker-dealers or investment bankers,
including without limitation underwriting fees, discounts, transfer taxes or commissions, and any
other fees or expenses (including legal fees and expenses) if any, attributable to the sale of
Registrable Securities, shall be payable by the holders of Registrable Securities included in a
registration under this Agreement.
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnification. The Company agrees to indemnify and hold
harmless the Investor, its partners, affiliates, officers, directors, employees and duly authorized
agents, and each Person or entity, if any, who controls the Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together with the partners, affiliates,
officers, directors, employees and duly authorized agents of such controlling Person or entity
7
(collectively, the Controlling Persons), from and against any loss, claim, damage,
liability, costs and expenses (including, without limitation, reasonable attorneys fees and
disbursements and costs and expenses of investigating and defending any such claim) (collectively,
Damages), joint or several, and any action or proceeding in respect thereof to which the
Investor, its partners, affiliates, officers, directors, employees and duly authorized agents, and
any Controlling Person, may become subject under the Securities Act or otherwise, as incurred,
insofar as such Damages (or actions or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, or in any preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement relating to the Registrable Securities or arises out of, or are based upon,
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein under the circumstances not misleading, and shall
reimburse the Investor, its partners, affiliates, officers, directors, employees and duly
authorized agents, and each such Controlling Person, for any legal and other expenses reasonably
incurred by the Investor, its partners, affiliates, officers, directors, employees and duly
authorized agents, or any such Controlling Person, as incurred, in investigating or defending or
preparing to defend against any such Damages or actions or proceedings; provided,
however, that the Company shall not be liable to the extent that any such Damages arise out
of the Investors (or any other indemnified Persons) (i) failure to send or give a copy of the
final prospectus or supplement (as then amended or supplemented) to the persons asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such person if such statement or omission was
corrected in such final prospectus or supplement or (ii) written confirmation of the sale of
Registrable Securities purchased in any specific Draw Down prior to the filing of a supplement to
the Prospectus to reflect such Draw Down (provided the Company is in compliance with its covenants
with respect to the filing of such supplement); provided, further, that the Company shall not be
liable to the extent that any such Damages arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such Registration Statement, or
any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of the Investor or any other person who participates as an underwriter in the offering or sale of
such securities, in either case, specifically stating that it is for use in the preparation
thereof. In connection with any Registration Statement with respect to which the Investor is
participating, the Investor will indemnify and hold harmless, to the same extent and in the same
manner as set forth in the preceding paragraph, the Company, each of its partners, affiliates,
officers, directors, employees and duly authorized agents, and each Person or entity, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, together with the partners, affiliates, officers, directors, employees and duly
authorized agents of such controlling Person or entity (each a Company Indemnified
Person) against any Damages to which any Company Indemnified Person may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such Damages arise out of or are
based upon (a) any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, or in any preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement relating to the Registrable Securities or arise out of, or are based upon,
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein under the
8
circumstances not misleading to the extent that such violation occurs in reliance upon and in
conformity with written information furnished to the Company by the Investor or on behalf of the
Investor expressly for use in connection with such Registration Statement, or (b) any failure by
the Investor to comply with the Securities Act, the Exchange Act or any other law or legal
requirement applicable to sales under the Registration Statement, or (c) a written confirmation of
the sale of Registrable Securities purchased by the Investor in any specific Draw Down prior to the
filing of a supplement to the Prospectus to reflect such Draw Down (provided the Company is in
compliance with its covenants with respect to the filing of such supplement).
Section 3.2 Conduct of Indemnification Proceedings. All claims for
indemnification under Section 3.1 shall be asserted and resolved in accordance with the provisions
of Section 9.2 of the Purchase Agreement.
Section 3.3 Additional Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Article III (with appropriate modifications) shall be
given by the Company and the Investor with respect to any required registration or other
qualification of Registrable Securities under any federal or state law or regulation of any
governmental authority other than the Securities Act. The provisions of this Article III shall be
in addition to any other rights to indemnification, contribution or other remedies which an
Indemnified Party or a Company Indemnified Person may have pursuant to law, equity, contract or
otherwise.
To the extent that any indemnification provided for herein is prohibited or limited by law,
the indemnifying party will make the maximum contribution with respect to any amounts for which it
would otherwise be liable under this Article III to the fullest extent permitted by law. However,
(a) no contribution will be made under circumstances where the maker of such contribution would not
have been required to indemnify the indemnified party under the fault standards set forth in this
Article III, (b) if the Investor is guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) the Investor will not be entitled to contribution from any
Person who is not guilty of such fraudulent misrepresentation, and (c) contribution (together with
any indemnification obligations under this Agreement) by the Investor will be limited in amount to
the proceeds received by the Investor from sales of Registrable Securities.
ARTICLE IV
MISCELLANEOUS
Section 4.1 No Outstanding Registration Rights. Except as otherwise disclosed
in accordance with the Purchase Agreement or in the Commission Documents, the Company represents
and warrants to the Investor that there is not in effect on the date hereof any agreement by the
Company pursuant to which any holders of securities of the Company have a right to cause the
Company to register or qualify such securities under the Securities Act or any securities or blue
sky laws of any jurisdiction.
Section 4.2 Term. The registration rights provided to the holders of
Registrable Securities hereunder, and the Companys obligation to keep the Registration Statement
effective, shall terminate at the earlier of (a) such time that is one year following the
termination of the Purchase Agreement, (b) such time as all Registrable Securities issued prior to
the termination of
9
the Purchase Agreement have ceased to be Registrable Securities, or (c) upon the consummation
of an Excluded Merger or Sale as defined in the Warrant or an event described in the last
sentence of Section 6(d) or Section 6(e) of the Warrant. Notwithstanding the foregoing, Article
III, Section 4.2, Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11 and Section
4.13 shall survive the termination of this Agreement.
Section 4.3 Rule 144. The Company will, at its expense, promptly take such
action as holders of Registrable Securities may reasonably request to enable such holders of
Registrable Securities to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 or (b) any similar rule or
regulation hereafter adopted by the Commission. If at any time the Company is not required to file
such reports, it will, at its expense, forthwith upon the written request of any holder of
Registrable Securities, make available adequate current public information with respect to the
Company within the meaning of Rule 144(c)(2) or such other information as necessary to permit sales
pursuant to Rule 144. Upon the request of the Investor, the Company will deliver to the Investor a
written statement, signed by the Companys principal financial officer, as to whether it has
complied with such requirements.
Section 4.4 Certificate. The Company will, at its expense, forthwith upon the
request of any holder of Registrable Securities, deliver to such holder a certificate, signed by
the Companys principal financial officer, stating (a) the Companys name, address and telephone
number (including area code), (b) the Companys Internal Revenue Service identification number, (c)
the Companys Commission file number, (d) the number of shares of each class of capital stock
outstanding as shown by the most recent report or statement published by the Company, and (e)
whether the Company has filed the reports required to be filed under the Exchange Act for a period
of at least ninety (90) days prior to the date of such certificate and in addition has filed the
most recent annual report required to be filed thereunder.
Section 4.5 Amendment And Modification. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, with the prior written consent of
the Company and the Investor. No course of dealing between or among any Person having any interest
in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement
or any rights or obligations of any person under or by reason of this Agreement.
Section 4.6 Successors and Assigns; Entire Agreement. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. The Company may assign this Agreement at any
time in connection with a sale or acquisition of the Company, whether by merger, consolidation,
sale of all or substantially all of the Companys assets, or similar transaction, without the
consent of the Investor, provided that the successor or acquiring Person or entity agrees in
writing to assume all of the Companys rights and obligations under this Agreement. The Investor
may assign its rights and obligations under this Agreement only with the prior written consent of
the Company, and any purported assignment by the Investor absent the Companys consent shall be
null and void. This Agreement, together with the Purchase Agreement and the Warrant sets forth the
entire agreement and understanding between the parties as to the subject matter hereof and
10
merges and supersedes all prior discussions, agreements and understandings of any and every
nature among them.
Section 4.7 Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that, if the severance of
such provision materially changes the economic benefits of this Agreement to either party as such
benefits are anticipated as of the date hereof, then such party may terminate this Agreement on
five (5) business days prior written notice to the other party. In such event, the Purchase
Agreement will terminate simultaneously with the termination of this Agreement.
Section 4.8 Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be given in accordance with Section 10.4
of the Purchase Agreement.
Section 4.9 Governing Law; Dispute Resolution. This Agreement shall be
construed under the laws of the State of New York.
Section 4.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they affect their
meaning, construction or effect.
Section 4.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original instrument and all of which together
shall constitute one and the same instrument.
Section 4.12 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the provisions and
purposes of this Agreement and the transactions contemplated hereby.
Section 4.13 Absence of Presumption. This Agreement shall be construed
without regard to any presumption or rule requiring construction or interpretation against the
party drafting or causing any instrument to be drafted.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the
undersigned, thereunto duly authorized, as of the date first set forth above.
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KINGSBRIDGE CAPITAL LIMITED
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By: |
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Antony Gardner-Hillman |
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Director |
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ELECTRO-OPTICAL SCIENCES, INC.
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By: |
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Joseph V. Gulfo, M.D. |
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Chief Executive Officer |
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[Signature Page to Registration Rights Agreement]
EX-99.1
Exhibit 99.1
Electro-Optical Sciences Secures Committed Equity
Financing Facility of $45 Million
IRVINGTON,
NY (May 8, 2009) Electro-Optical Sciences, Inc. (EOS) (NASDAQ: MELA) today announced that it has entered into a Committed Equity Financing Facility (CEFF) with
Kingsbridge Capital Limited, a private investment group, in which Kingsbridge has committed to
provide, at the companys sole discretion, up to $45 million in cash during the next three years,
through the purchase of newly-issued shares of Electro-Optical Sciences common stock.
This financing facility provides us great flexibility in choosing if, and when, to access funds,
thereby minimizing shareholder dilution. We view this as an important secondary source of capital
to that of more traditional equity financings, said Joseph V. Gulfo, MD, President and CEO of
Electro-Optical Sciences. The funds are available to us as we proceed through the regulatory
pathway and commercialization process for MelaFind, our non-invasive, point of care, computerized
system for early melanoma detection.
EOS is not obligated to utilize any of the $45 million available under the CEFF and there are no
minimum commitments or minimum use penalties. EOS has access, at its discretion, to the funds
through the sale of newly-issued shares of EOS common stock. The funds that can be raised under
the CEFF over the three-year term will depend on the then-current price for EOS stock, for the
number of shares actually sold may not exceed 19.99% of the companys shares outstanding.
In connection with the CEFF, the company issued a warrant to Kingsbridge to purchase 200,000 shares
of common stock at $11.35 per share, representing a 50% premium to the average closing price of the
companys common stock for the five days preceding the signing of the CEFF agreement.
The company may access capital under the CEFF by providing Kingsbridge with common stock at
discounts ranging from six to ten percent, depending on the average market price of EOS common
stock during the applicable pricing period. The CEFF does not impose any material restrictions on
EOS operating or financial activities. During the term of the CEFF, Kingsbridge is prohibited from
engaging in any short selling or derivative transactions related to EOS common stock.
The securities issuable pursuant to the CEFF and upon exercise of the warrant have not been
registered under the Securities Act of 1933 and may not be offered or sold in the United States
absent registration under the Securities Act of 1933 and applicable state securities laws or
available exemptions from registration requirements. EOS has agreed to file a registration
statement with respect to the resale of shares issued pursuant to the CEFF and underlying the
warrant within 60 days of the date of the CEFF agreement.
This news release shall not constitute an offer to sell or the solicitation of an offer to buy
these securities, nor shall there be any sale of these securities in any state which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the
securities laws of any such state. Any offering of EOS common stock under the registration
statement referred to above will be made only by means of a prospectus.
About Electro-Optical Sciences
EOS is a medical device company focused on designing and developing a non-invasive, point-of-care
instrument to assist in the early detection of melanoma. MelaFind features a hand-held imaging
device that emits light of multiple wavelengths to capture images of suspicious pigmented skin
lesions and extract data. Using sophisticated algorithms, the data are then analyzed against a
proprietary database of melanomas and benign lesions in order to provide the clinician with clear
and objective information.
For more information on EOS, visit www.eosciences.com.
Safe Harbor
This press release includes forward-looking statements within the meaning of the Securities
Litigation Reform Act of 1995. These statements include but are not limited to our plans,
objectives, expectations and intentions and other statements that contain words such as expects,
contemplates, anticipates, plans, intends, believes and variations of such words or
similar expressions that predict or indicate future events or trends, or that do not relate to
historical matters. These statements are based on our current beliefs or expectations and are
inherently subject to significant uncertainties and changes in circumstances, many of which are
beyond our control. There can be no assurance that our beliefs or expectations will be achieved.
Actual results may differ materially from our beliefs or expectations due to economic, business,
competitive, market and regulatory factors.