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Filing
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 6, 2011
ADVENTRX Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-32157 | 84-1318182 | ||
(State or other jurisdiction of | (Commission File Number) | (IRS Employer Identification No.) | ||
incorporation) |
12390
El Camino Real, Suite 150
San Diego, CA 92130
(Address of principal executive offices and zip code)
San Diego, CA 92130
(Address of principal executive offices and zip code)
Not applicable
(Former name or former address if changed since last report)
(Former name or former address if changed since last report)
Registrants telephone number, including area code: (858) 552-0866
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On January 5, 2011, ADVENTRX Pharmaceuticals, Inc. (the Company) entered into an engagement
letter agreement with Rodman & Renshaw, LLC (the Placement Agent) pursuant to which the Placement
Agent agreed to serve as exclusive placement agent for the Company on a reasonable best efforts
basis in connection with a proposed offering by the Company of its securities.
On January 6, 2011 before 4:00 p.m. (EST), the Company entered into a securities purchase agreement with certain
investors, pursuant to which the Company agreed to sell an aggregate of 8,184,556 shares of
its common stock and warrants to purchase up to an aggregate of 4,092,278 shares of its common
stock (warrants). The common stock and the warrants were offered in units, with each unit
consisting of one share of common stock, a series A warrant (series A warrants) to purchase up to
0.25 shares of common stock and a series B warrant (series B warrants) to purchase up to 0.25
shares of common stock. Each unit will be sold at a negotiated price
of $2.75.
Subject to certain ownership limitations, the series A warrants will be exercisable at any
time after their date of issuance and on or before the fifth trading day after the one-year
anniversary of the date on which they initially become exercisable at an exercise price of $2.75 per share of common
stock. Subject to certain ownership limitations, the series B warrants will be exercisable at any
time after their date of issuance and on or before the five-year
anniversary of the date on which they initially become exercisable at an exercise price of $2.75 per share of common
stock. The closing price of the Companys common stock on January 5, 2011 was $2.67. The exercise
price of the warrants and, in some cases, the number of shares issuable upon exercise, are subject
to adjustment in the case of stock splits, stock dividends, combinations of shares and similar
recapitalization transactions.
The securities purchase agreement includes certain agreements and covenants for the benefit of
the investors, including restrictions on the Companys ability to issue additional equity
securities for a period of 15 days after January 11, 2011 and to undertake a reverse or forward
stock split of its common stock for a period of 1 year after January 11, 2011, and a requirement to
use its commercially reasonable efforts to maintain the listing of its common stock on one or more
specified United States securities exchanges.
The common stock, the warrants and the shares of common stock underlying the warrants are
being offered and will be issued and sold pursuant to the Companys effective shelf registration
statement on Form S-3 (File No. 333-165691) and the related prospectus included therein and the
prospectus supplements, dated January 6, 2011 and filed with the Securities and Exchange Commission
on January 6, 2011 pursuant to Rule 424(b) under the Securities Act of 1933, as amended. The net
proceeds to the Company from the offering, after deducting the placement agents fees and the
Companys estimated offering expenses, and excluding the proceeds, if any, from the exercise of the
warrants issued in the offering, are expected to be approximately $21.0 million. The
transaction is expected to close on January 11, 2011, subject to satisfaction of customary closing
conditions.
A copy of the opinion of counsel to the Company relating to the legality of the issuance and
sale of the shares of common stock and warrants comprising the units and shares of common stock
issuable upon exercise of the warrants is attached as Exhibit 5.1 hereto.
Pursuant to the terms of an engagement letter agreement with the Placement Agent, assuming the
sale of all of the units in the offering, the Company will pay the Placement Agent a fee equal to
approximately $1,462,989. This amount represents 6.5% of the gross proceeds from the sale of the
units. In addition, the Company will issue to the Placement Agent warrants to purchase up to that
number of shares of common stock equal to 5.0% of the number of shares of common stock underlying units sold in the
offering. Assuming the sale of all of the units in the offering, the compensation warrants to the
placement agent will be exercisable for up to 409,228 shares of the Companys common stock
at an exercise price of $3.44 per share. The other terms of the Placement Agents warrants will
be substantially the same as the terms of the warrants issued to the investors in the offering,
except that the exercise period will be for five years from April 1, 2010, and they will include certain restrictions on transfer in accordance with FINRA
regulations.
The foregoing description of the terms of the securities purchase agreement, the warrants and
the engagement letter agreement are subject to, and qualified in their entirety by, such documents
attached hereto as Exhibits 4.1, 4.2 and 10.1, respectively, and incorporated herein by reference.
A copy of the press release announcing the registered direct public offering is attached hereto as
Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The list of exhibits called for by this Item is incorporated by reference to the Exhibit Index
filed with this report.
SIGNATURE
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.
ADVENTRX Pharmaceuticals, Inc. |
||||
Dated: January 7, 2011 | By: | /s/ Patrick L. Keran | ||
Name: | Patrick L. Keran | |||
Title: | President and Chief Operating Officer | |||
Exhibit Index
Exhibit No. | Description | |
4.1
|
Form of Securities Purchase Agreement, dated January 6, 2011, by and between ADVENTRX Pharmaceuticals, Inc. and the purchaser(s) listed on the signature pages thereto | |
4.2
|
Form of [Series A/B] Common Stock Purchase Warrant | |
5.1
|
Opinion of DLA Piper LLP (US) | |
10.1
|
Engagement Letter Agreement, dated January 5, 2011, by and between ADVENTRX Pharmaceuticals, Inc. and Rodman & Renshaw, LLC | |
23.1
|
Consent of DLA Piper LLP (US) (included in Exhibit 5.1) | |
99.1
|
Press Release, dated January 7, 2011 |
Exhibit 4.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this Agreement) is dated as of January 6, 2011,
between ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the Company), and each
purchaser identified on the signature pages hereto (each, including its successors and assigns, a
Purchaser and collectively the Purchasers).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an
effective registration statement under the Securities Act of 1933, as amended (the Securities
Act), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally
and not jointly, desires to purchase from the Company, securities of the Company as more fully
described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration the receipt and adequacy of which are hereby acknowledged,
the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for
all purposes of this Agreement, the following terms have the meanings set forth in this Section
1.1:
Action shall have the meaning ascribed to such term in Section 3.1(j).
Affiliate means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the Securities Act.
Board of Directors means the board of directors of the Company.
Business Day means any day except any Saturday, any Sunday, any day which is
a federal legal holiday in the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other governmental action to close.
Closing means the closing of the purchase and sale of the Securities pursuant
to Section 2.1.
Closing Date means the Trading Day on which all of the Transaction Documents
have been executed and delivered by the applicable parties thereto, and all conditions
precedent to (i) each Purchasers obligations to pay the Subscription Amount and (ii) the
Companys obligations to deliver the Securities, in each case, have been satisfied or
waived, but in no event later than the third Trading Day following the date hereof.
Commission means the United States Securities and Exchange Commission.
Common Stock means the common stock of the Company, par value $0.001 per
share, and any other class of securities into which such securities may hereafter be
reclassified or changed.
Common Stock Equivalents means any securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right, option, warrant or other
instrument that is at any time convertible into or exercisable or exchangeable for, or
otherwise entitles the holder thereof to receive, Common Stock.
Company Counsel means DLA Piper LLP (US), with offices located at 4365
Executive Drive, Suite 1100, San Diego, CA 92121.
Disclosure Schedules means the Disclosure Schedules of the Company delivered
concurrently herewith.
Escrow Agent means Signature Bank, a New York State chartered bank, with
offices at 261 Madison Avenue, New York, New York 10016.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exempt Issuance means the issuance of (a) shares of Common Stock, options or
other equity awards to employees, officers, directors or consultants of the Company pursuant
to any equity incentive plan duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a committee
of non-employee directors established for such purpose, (b) securities upon the exercise or
exchange of or conversion of any Securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been
amended since the date of this Agreement to increase the number of such securities or to
decrease the exercise price, exchange price or conversion price of such securities, and (c)
securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that any such issuance shall only be
to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition
to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
FDA shall have the meaning ascribed to such term in Section 3.1(z).
FDCA shall have the meaning ascribed to such term in Section 3.1(z).
GAAP shall have the meaning ascribed to such term in Section 3.1(h).
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Liens means a lien, charge, pledge, security interest, encumbrance, right of
first refusal, preemptive right or other restriction other than restrictions imposed by
securities laws.
Material Adverse Effect means: (a) a material adverse effect on the Companys
ability to perform in any material respect its obligations under any Transaction Document,
or (b) a material adverse change in the results of operations, assets, business or financial
condition of the Company and its Subsidiaries, taken as a whole, from that set forth or
incorporated by reference in the Prospectus and Prospectus Supplement; provided,
however, that none of the following, in and of itself or themselves, shall
constitute a Material Adverse Effect: (i) changes in the economy or financial markets
generally in the United States or changes that are the result of acts of war or terrorism;
(ii) changes that are the result of factors generally affecting the banking industry in
which the Company and its Subsidiaries operate; and (iii) a decline in the price of the
Companys Common Stock on the Trading Market, provided that the exception in this clause
(iii) shall not prevent or otherwise affect a determination that any change, effect,
circumstance or development underlying such decline has resulted in, or contributed to, a
Material Adverse Effect.
Material Permits shall have the meaning ascribed to such term in Section
3.1(m).
Per Share Purchase Price means $2.75, subject to adjustment for reverse and
forward stock splits, stock dividends, stock combinations and other similar transactions of
the Common Stock that occur after the date of this Agreement.
Person means an individual or corporation, partnership, trust, incorporated
or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.
Pharmaceutical Product shall have the meaning ascribed to such term in
Section 3.1(z).
Proceeding means an action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus means the base prospectus filed with the Registration Statement.
Prospectus Supplement means the supplement to the Prospectus complying with
Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the
Company to each Purchaser before or at the Closing.
Purchaser Party shall have the meaning ascribed to such term in Section 4.8.
Registration Statement means the effective registration statement on Form S-3
with the Commission file No. 333-165691 which registers the sale of the Shares, the Warrants
and the Warrant Shares to the Purchasers.
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Required Approvals shall have the meaning ascribed to such term in Section
3.1(e).
Rule 144 means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended or interpreted from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
Rule 424 means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended or interpreted from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same purpose
and effect as such Rule.
SEC Reports shall have the meaning ascribed to such term in Section 3.1(h).
Securities means the Shares, the Warrants and the Warrant Shares.
Securities Act means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
Series A
Warrants means, collectively, the Series A Common
Stock purchase
warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which shall be exercisable commencing on the Closing Date and have a term of
exercise equal to one year and 5 Trading Days from the Closing Date, in the form of Exhibit A
attached hereto.
Series B Warrants means, collectively, the Series B Common Stock purchase
warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which shall be exercisable commencing on the Closing Date and have a term of
exercise equal to 5 years from the Closing Date, in the form of Exhibit A attached
hereto.
Shares means the shares of Common Stock issued or issuable to each Purchaser
pursuant to this Agreement.
Short Sales means all short sales as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or reservation
of borrowable shares of Common Stock).
Subscription Amount means, as to each Purchaser, the aggregate amount to be
paid for Shares and Warrants purchased hereunder as specified below such Purchasers name on
the signature page of this Agreement and next to the heading Subscription Amount, in
United States dollars and in immediately available funds.
Subsidiary means any subsidiary of the Company and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the
date hereof but before the Closing Date.
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Trading Day means a day on which the principal Trading Market for the Common
Stock is open for trading.
Trading Market means any of the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the NYSE AMEX, the
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New
York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).
Transaction Documents means this Agreement, the Warrants and any other
documents or agreements executed in connection with the transactions contemplated hereunder.
Transfer Agent means American Stock Transfer & Trust Company LLC, the current
transfer agent of the Company, with a mailing address of 6201 15th Avenue, 2nd Floor,
Brooklyn, New York 11219 and a facsimile number of (718) 921-8310, and any successor
transfer agent of the Company.
Variable Rate Transaction means a transaction in which the Company (i) issues
or sells any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional shares of Common Stock either
(A) at a conversion price, exercise price or exchange rate or other price that is based upon
and/or varies with the trading prices of or quotations for the shares of Common Stock at any
time after the initial issuance of such debt or equity securities, or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the
initial issuance of such debt or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of the Company or the
market for the Common Stock or (ii) enters into any agreement, including, but not limited
to, an equity line of credit, whereby the Company may sell securities at a future determined
price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to
preclude any such issuance, which remedy shall be in addition to any right to collect
damages.
Warrants means the Series A Warrants and the Series B Warrants.
Warrant Shares means the shares of Common Stock issuable upon exercise of the
Warrants.
WS means Weinstein Smith LLP with offices located at 420 Lexington Avenue,
Suite 2620, New York, New York 10170-0002.
ARTICLE II.
PURCHASE AND SALE
PURCHASE AND SALE
2.1 Closing. Upon the terms and subject to the conditions set forth herein, the
Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an
aggregate of $22,507,529 of Shares and Warrants. At the Closing, each Purchaser shall deliver to the
Company, via wire transfer or a certified check, immediately available funds equal to such
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Purchasers Subscription Amount as set forth on the signature page hereto executed by such
Purchaser and the Company shall deliver to each Purchaser its respective Shares and a Warrant, as
determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other
items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of WS or such
other location as the parties shall mutually agree.
2.2 Deliveries.
(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered
to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Company Counsel, substantially in the form to be
mutually agreed upon by the parties hereto;
(iii) a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver via The Depository Trust Company Deposit or Withdrawal
at Custodian system (DWAC) that number of Shares equal to such Purchasers
Subscription Amount divided by the Per Share Purchase Price;
(iv) a Series A Warrant registered in the name of such Purchaser to purchase up
to a number of shares of Common Stock equal to 25% of such Purchasers Shares, with
an exercise price equal to $2.75, subject to adjustment therein (such Warrant
certificate may be delivered within three Trading Days of the Closing Date);
(v) a Series B Warrant registered in the name of such Purchaser to purchase up
to a number of shares of Common Stock equal to 25% of such Purchasers Shares, with
an exercise price equal to $2.75, subject to adjustment therein (such Warrant
certificate may be delivered within three Trading Days of the Closing Date); and
(vi) the Prospectus and Prospectus Supplement (which may be delivered in
accordance with Rule 172 under the Securities Act).
(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser; and
(ii) such Purchasers Subscription Amount by wire transfer to the account
specified in writing by the Company.
2.3 Closing Conditions.
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(a) The obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of
the representations and warranties of each Purchaser contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be
performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b)
of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of
the representations and warranties of the Company contained herein (unless as of a
specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be
performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth (or
incorporated by reference) in the Registration Statement, the Prospectus, the Prospectus Supplement
or the Disclosure Schedules, which disclosures in the Registration Statement, the Prospectus, the
Prospectus Supplement and Disclosure Schedules shall be deemed a part hereof and shall qualify any
representation or otherwise made herein, the Company hereby makes the following representations and
warranties to each Purchaser:
(a) Subsidiaries. All of the direct and indirect subsidiaries of the Company
are set forth in the SEC Reports. The Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any Liens, and
all of the issued and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. If the Company has no subsidiaries, all other
references to the Subsidiaries or any of them in the Transaction Documents shall be
disregarded.
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(b) Organization and Qualification. The Company and each of the Subsidiaries
is an entity duly incorporated or otherwise organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as
currently conducted. Neither the Company nor any Subsidiary is in violation nor default of
any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, could not reasonably be expected to result in a Material
Adverse Effect and no Proceeding has been instituted or, to the knowledge of the Company,
threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.
(c) Authorization; Enforcement. The Company has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by this
Agreement and each of the other Transaction Documents and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of this Agreement and each
of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the
Board of Directors or the Companys stockholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(d) No Conflicts. The execution, delivery and performance by the Company of
this Agreement and the other Transaction Documents to which it is a party, the issuance and
sale of the Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not: (i) conflict with or violate any provision of the Companys
or any Subsidiarys certificate or articles of incorporation, bylaws or other organizational
or charter documents, (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result in the creation of any
Lien upon any of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a
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party or by which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any property or
asset of the Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not reasonably be expected to result in a Material
Adverse Effect.
(e) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of
the Transaction Documents, other than: (i) the filings required pursuant to Section 4.2 of
this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the
filing of application(s) to and approval by the NYSE AMEX for the listing of the Shares and
Warrant Shares for trading thereon in the time and manner required thereby, (iv) an approval
or waiver under that certain Rights Agreement, dated July 27, 2005, as amended (Rights
Agreement), and (v) such filings as are required to be made under applicable state
securities laws (collectively, the Required Approvals).
(f) Issuance of the Securities; Registration. The Shares and the Warrants are
duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of
all Liens imposed by the Company. The Warrant Shares, when issued in accordance with the
terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear
of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement and the Warrants. The Registration Statement was declared effective under the
Securities Act on April 1, 2010 and no stop order preventing or suspending the effectiveness
of the Registration Statement or suspending or preventing the use of the Prospectus has been
issued by the Commission and no proceedings for that purpose have been instituted or, to the
knowledge of the Company, are threatened by the Commission. The Company, if required by the
rules and regulations of the Commission, proposes to file the Prospectus Supplement, with
the Commission pursuant to Rule 424(b). At the time the Registration Statement and any
amendments thereto became effective, at the date of this Agreement and at the Closing Date,
the Registration Statement and any amendments thereto conformed and will conform in all
material respects to the requirements of the Securities Act and did not and will not contain
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and the
Prospectus and any amendments or supplements thereto, at time the Prospectus or any
amendment or supplement thereto was issued and at the Closing Date, conformed and will
conform in all material respects to the requirements of the Securities Act and did not and
will not contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
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(g) Capitalization. The capitalization of the Company is as set forth in the
Prospectus and the Prospectus Supplement. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to
the exercise of employee stock options under the Companys equity incentive plans, the
issuance of shares of Common Stock to employees pursuant to the Companys employee stock
purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange
Act. Except as set forth in the Rights Agreement, no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. Except (i) as a result of the
purchase and sale of the Securities, (ii) pursuant to the Companys equity incentive plans
and (iii) pursuant to agreements or instruments, including the Rights Agreement, filed as
exhibits to SEC Reports incorporated by reference into the Prospectus Supplement, as a
result of the purchase and sale of the Securities, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of
Common Stock, or contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to issue additional shares of Common Stock or
Common Stock Equivalents. The issuance and sale of the Securities will not obligate the
Company to issue shares of Common Stock or other securities to any Person (other than the
Purchasers) and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under any of such securities. All of the
outstanding shares of capital stock of the Company are duly authorized and validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state
securities laws, and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities. Except for the
Required Approvals, no further approval or authorization of any stockholder, the Board of
Directors or others is required for the issuance and sale of the Securities. Other than the
Rights Agreement, there are no stockholders agreements, voting agreements or other similar
agreements with respect to the Companys capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Companys stockholders.
(h) SEC Reports; Financial Statements. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by the Company under
the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the two years preceding the date hereof (or such shorter period as the Company
was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, together with the
Registration Statement, the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the SEC Reports) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the Exchange Act, as
applicable, and none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
10
therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with respect thereto
as in effect at the time of filing or as amended or corrected in a subsequent SEC Report.
Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved
(GAAP), except as may be otherwise specified in such financial statements or the
notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the
Company and its consolidated Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(i) Material Changes; Undisclosed Events, Liabilities or Developments. Since
the date of the latest audited financial statements included within the SEC Reports, except
as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i)
there has been no event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) the Company has not materially altered
its method of accounting, (iii) except in connection with the Companys 5% Series B
Convertible Preferred Stock, 5% Series C Convertible Preferred Stock, 4.25660% Series D
Convertible Preferred Stock, 3.73344597664961% Series E Convertible Preferred Stock, and
2.19446320054018% Series F Convertible Preferred Stock, the Company has not declared or made
any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock and
(iv) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company equity incentive plans.
(j) Litigation. There is no action, suit, inquiry, notice of violation,
proceeding or investigation pending or, to the knowledge of the Company, threatened against
or affecting the Company, any Subsidiary or any of their respective properties before or by
any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an Action) which (i)
adversely affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Securities or (ii) could, if there were an unfavorable
decision, reasonably be expected to result in a Material Adverse Effect.
(k) Labor Relations. No material labor dispute exists or, to the actual
knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect.
(l) Compliance. Neither the Company nor any Subsidiary: (i) is in default
under or in violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit agreement or
11
any other agreement or instrument to which it is a party or by which it or any of its
properties is bound (whether or not such default or violation has been waived), (ii) is in
violation of any judgment, decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation
of any governmental authority, including without limitation all foreign, federal, state and
local laws applicable to its business and all such laws that affect the environment, except
in each case as could not reasonably be expected to result in a Material Adverse Effect.
(m) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal, state, local or
foreign regulatory authorities necessary to conduct their respective businesses as described
in the SEC Reports, except where the failure to possess such permits could not reasonably be
expected to result in a Material Adverse Effect (Material Permits), and neither
the Company nor any Subsidiary has received any notice of proceedings relating to the
revocation or modification of any Material Permit. For clarity, the Company has not
received the approval of any regulatory agency to market or sell any of its product
candidates.
(n) Sarbanes-Oxley. The Company is in compliance in all material respects with
all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the date
hereof and the Closing Date.
(o) Certain Fees. Except as set forth in the Prospectus Supplement, no
brokerage or finders fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by the Transaction Documents.
The Purchasers shall have no obligation with respect to any fees or with respect to any
claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by the Transaction
Documents.
(p) Trading Market Rules. The issuance and sale of the Securities hereunder
does not contravene the rules and regulations of the Trading Market.
(q) Investment Company. The Company is not, and immediately after receipt of
payment for the Securities, will not be, an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(r) Registration Rights. No Person has any right to cause the Company or any
Subsidiary to effect the registration under the Securities Act of any securities of the
Company or any Subsidiary.
(s) Listing and Maintenance Requirements. The Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such
12
registration. The Company has not, in the 12 months preceding the date hereof,
received notice from any Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market.
(t) Application of Takeover Protections. The Company and the Board of
Directors have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Companys
certificate of incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including without limitation as a result of the Companys issuance of
the Securities and the Purchasers ownership of the Securities.
(u) Disclosure. Except with respect to the material terms and conditions of
the transactions contemplated by the Transaction Documents, the Company confirms that
neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or might
constitute material, non-public information which is not otherwise disclosed in the
Prospectus Supplement. The Company understands and confirms that the Purchasers will rely
on the foregoing representation in effecting transactions in securities of the Company.
(v) No Integrated Offering. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would cause this offering of the Securities to be integrated with prior
offerings by the Company for purposes of any applicable shareholder approval provisions of
any Trading Market on which any of the securities of the Company are listed or designated.
(w) Acknowledgment Regarding Purchasers Purchase of Securities. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an
arms length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with respect to
the Transaction Documents and the transactions contemplated thereby and any advice given by
any Purchaser or any of their respective representatives or agents in connection with the
Transaction Documents and the transactions contemplated thereby is merely incidental to the
Purchasers purchase of the Securities. The Company further represents to each Purchaser
that the Companys decision to enter into this Agreement and the other Transaction Documents
has been based solely on the independent evaluation of the transactions contemplated hereby
by the Company and its representatives.
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(x) Acknowledgement Regarding Purchasers Trading Activity. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(e)
and 4.10 hereof), it is understood and acknowledged by the Company that: (i) none of the
Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist
from purchasing or selling, long and/or short, securities of the Company, or derivative
securities based on securities issued by the Company or to hold the Securities for any
specified term; (ii) past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or derivative transactions, before
or after the closing of this or future private placement transactions, may negatively impact
the market price of the Companys publicly-traded securities; (iii) any Purchaser, and
counter-parties in derivative transactions to which any such Purchaser is a party,
directly or indirectly, may presently have a short position in the Common Stock, and (iv)
each Purchaser shall not be deemed to have any affiliation with or control over any arms
length counter-party in any derivative transaction. The Company further understands and
acknowledges that (y) one or more Purchasers may engage in hedging activities at various
times during the period that the Securities are outstanding, including, without limitation,
during the periods that the value of the Warrant Shares deliverable with respect to
Securities are being determined, and (z) such hedging activities (if any) could reduce the
value of the existing stockholders equity interests in the Company at and after the time
that the hedging activities are being conducted. The Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
(y) Regulation M Compliance. The Company has not, and to its knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or
to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased,
or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid
or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation
paid to the Companys placement agent in connection with the placement of the Securities.
(z) FDA. As to each product subject to the jurisdiction of the U.S. Food and
Drug Administration (FDA) under the Federal Food, Drug and Cosmetic Act, as
amended, and the regulations thereunder (FDCA) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its
Subsidiaries (each such product, a Pharmaceutical Product), such Pharmaceutical
Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed
by the Company in compliance with all applicable requirements under FDCA and similar laws,
rules and regulations relating to registration, investigational use, premarket clearance,
licensure, or application approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling, advertising, record keeping and
filing of reports, except where the failure to be in compliance would not have a Material
Adverse Effect. There is no pending, completed or, to the Companys knowledge, threatened,
action (including any lawsuit, arbitration, or legal or administrative or regulatory
proceeding, charge, complaint, or investigation)
14
against the Company or any of its Subsidiaries, and none of the Company or any of its
Subsidiaries has received any notice, warning letter or other communication from the FDA or
any other governmental entity, which (i) contests the premarket clearance, licensure,
registration, or approval of, the uses of, the distribution of, the manufacturing or
packaging of, the testing of, the sale of, or the labeling and promotion of any
Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or
seizure of, or withdraws or orders the withdrawal of advertising or sales promotional
materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any
clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at
any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into
a consent decree of permanent injunction with the Company or any of its Subsidiaries, or
(vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any
of its Subsidiaries, and which, either individually or in the aggregate, would have a
Material Adverse Effect. The properties, business and operations of the Company have been
and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA
will prohibit the marketing, sale, license or use in the United States of any product
proposed to be developed, produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being developed or proposed to
be developed by the Company.
(aa) Stock Option Plans. To the knowledge of the Company, each stock option
granted by the Company under the Companys equity incentive plan was granted (i) in
accordance with the terms of the Companys stock option plan and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the date such stock option
would be considered granted under GAAP and applicable law. To the knowledge of the Company,
no stock option granted under the Companys stock option plan has been backdated. The
Company has not knowingly granted, and there is no and has been no Company policy or
practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the
grant of stock options with, the release or other public announcement of material
information regarding the Company or its Subsidiaries or their financial results or
prospects.
3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and
for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing
Date to the Company as follows (unless as of a specific date therein):
(a) Organization; Authority. Such Purchaser is either an individual or an entity
duly incorporated or formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and performance by such
Purchaser of the transactions contemplated by this Agreement have been duly authorized by all
necessary corporate, partnership, limited liability company or similar action, as applicable,
on the part of such Purchaser. Each Transaction Document to which it is a party has been duly
executed by such Purchaser, and when delivered by such Purchaser
15
in accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i)
as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of
creditors rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(b) No Conflicts. The execution, delivery and performance by such Purchaser of
this Agreement and the consummation by such Purchaser of the transactions contemplated hereby
do not and will not (i) conflict with or violate any provision of such Purchasers certificate
or articles of incorporation, bylaws, or other organizational or charter documents, or (ii)
conflict with or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority to which such
Purchaser is subject (including federal and state securities laws and regulations), or by which
any property or asset of such Purchaser is bound or affected.
(c) Purchaser Status. At the time such Purchaser was offered the Securities, it
was, and as of the date hereof it is, and on each date on which it exercises any Warrants, it
will be either: (i) an accredited investor as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act or (ii) a qualified institutional buyer as defined
in Rule 144A(a) under the Securities Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d) Experience of Such Purchaser. Such Purchaser acknowledges and understands
that (i) its investment in the Securities involves a high degree of risk and (ii) nothing in
the Transaction Documents or SEC Reports constitutes legal, tax or investment advice. Such
Purchaser, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the Securities, and has so
evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic
risk of an investment in the Securities and, at the present time, is able to afford a complete
loss of such investment.
(e) Certain Transactions and Confidentiality. Other than consummating the
transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any
Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any
purchases or sales, including Short Sales, of the securities of the Company during the period
commencing as of the time that such Purchaser first received information (written or oral) from
the Company or any other Person representing the Company setting forth the proposed terms of
the transactions contemplated hereunder and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of such Purchasers assets
and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchasers assets, the representation set
forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment
16
decision to purchase the Securities covered by this Agreement. Other than to other
Persons party to this Agreement, such Purchaser has maintained the confidentiality of all
disclosures made to it in connection with this transaction (including the existence and terms
of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to
the identification of the availability of, or securing of, available shares to borrow in order
to effect Short Sales or similar transactions in the future.
The Company acknowledges and agrees that the representations contained in Section 3.2 shall not
modify, amend or affect such Purchasers right to rely on the Companys representations and
warranties contained in this Agreement or any representations and warranties contained in any other
Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transaction contemplated hereby.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
OTHER AGREEMENTS OF THE PARTIES
4.1 Warrant Shares. If all or any portion of a Warrant is exercised at a time when
there is an effective registration statement to cover the issuance or resale of the Warrant Shares
or if the Warrant is exercised via cashless exercise more than six months after the date of
issuance of the Warrant (or one year in the event there is not adequate current public information
available with respect to the Company as required by subsection (c) of Rule 144) and the holder is
not and has not been an Affiliate of the Company within the 90 days prior to the date of exercise
of the Warrant, the Warrant Shares issued pursuant to any such exercise shall be issued free of all
legends. If at any time following the date hereof the Registration Statement (or any subsequent
registration statement registering the sale or resale of the Warrant Shares) is not effective or is
not otherwise available for the sale or resale of the Warrant Shares, the Company shall immediately
notify the holders of the Warrants in writing that such registration statement is not then
effective and thereafter shall promptly notify such holders when the registration statement is
effective again and available for the sale or resale of the Warrant Shares (it being understood and
agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to
sell, any of the Warrant Shares in compliance with applicable federal and state securities laws).
The Company shall use reasonable best efforts to keep a registration statement (including the
Registration Statement) registering the issuance or resale of the Warrant Shares effective until
the earliest of (i) the time that the Warrants have expired, and (ii) the six-month anniversary of
the date of issuance of the Warrants (or the one-year anniversary of the date of issuance in the
event there is not adequate current public information available with respect to the Company as
required by subsection (c) of Rule 144).
4.2 Securities Laws Disclosure; Publicity. The Company shall (a) by 9:30 a.m. (New
York City time) on January 7, 2011, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) by the end of the first Trading Day immediately following
the date hereof, file a Current Report on Form 8-K, which shall include the Transaction Documents
as exhibits thereto. From and after the issuance of such press release, the Company represents to
the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the
17
transactions contemplated by the Transaction Documents. The Company and each Purchaser shall
consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby (other than with respect to the closing of the transaction contemplated by the
Transaction Documents), and neither the Company nor any Purchaser shall issue any such press
release nor otherwise make any such public statement without the prior consent of the Company, with
respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with
respect to any press release of the Company, which consent shall not unreasonably be withheld or
delayed, except if such disclosure is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser,
or include the name of any Purchaser in any filing with the Commission or any regulatory agency or
Trading Market, without the prior written consent of such Purchaser, except (a) as required by
federal securities law in connection with the filing of final Transaction Documents (including
signature pages thereto) with the Commission and (b) to the extent such disclosure is required by
law or Trading Market regulations, in which case the Company shall provide the Purchasers with
prior notice of such disclosure permitted under this clause (b).
4.3 Non-Public Information. Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, the Company covenants and agrees
that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents
or counsel with any information that the Company believes constitutes material non-public
information, unless prior thereto such Purchaser shall have executed an agreement with the
Company regarding the confidentiality and use of such information. The Company understands and
confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.
4.4 Use of Proceeds. The Company shall use the net proceeds from the sale of the
Securities hereunder as set forth in the Prospectus Supplement.
4.5 Indemnification of Purchasers. Subject to the provisions of this Section 4.5 and
to the extent permitted by law, the Company will indemnify and hold each Purchaser and its
directors, officers, shareholders, members, partners, employees and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers,
shareholders, agents, members, partners or employees (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other
title) of such controlling persons (each, a Purchaser Party) harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable attorneys fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a)
any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against a
Purchaser Party in any capacity, or any of them or their respective Affiliates, by any stockholder
of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents (unless such action is based upon a
18
breach of such Purchaser Partys representations, warranties or covenants under the
Transaction Documents or any agreements or understandings such Purchaser Party may have with any
such stockholder or any violations by such Purchaser Party of state or federal securities laws or
any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct
or malfeasance (collectively, the Carve-Outs)). If any action shall be brought against
any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such
Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right
to assume the defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Purchaser Party except to the extent that (i) the employment thereof has
been specifically authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii) in such action
there is, in the reasonable opinion of counsel, a material conflict on any material issue between
the position of the Company and the position of such Purchaser Party, in which case the Company
shall be responsible for the reasonable fees and expenses of no more than one such separate
counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any
settlement by a Purchaser Party effected without the Companys prior written consent, which shall
not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Partys breach of any of the
representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement
or in the other Transaction Documents. The Company will have the exclusive right to settle any
claim or proceeding provided that the Company will not settle any such claim, action or proceeding
without the prior written consent of the Purchaser Party, which shall not be unreasonably withheld
or delayed; provided that such consent shall not be required if the settlement includes a full and
unconditional release of the Purchase Party from all liability arising or that may arise out of
such claim or proceeding and does not include a statement as to or an admission or fault,
culpability or a failure to act by or on behalf of any Purchaser Party. The indemnification
required by this Section 4.5 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or are incurred. To the
extent that any payment made to a Purchaser Party is determined to have been improper by reason of
the underlying action being based on conduct or circumstances set forth in the definition of the
Carve-Outs, such Purchase Party will promptly pay the Company such amount. The indemnity
agreements contained herein shall be in addition to any cause of action or similar right of any
Purchaser Party against the Company or others, and (y) any liabilities the Company may be subject
to pursuant to law.
4.6 Reservation of Common Stock. As of the date hereof, the Company has reserved and
the Company shall continue to reserve and keep available at all times, free of preemptive rights, a
sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares
pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.7 Listing of Common Stock. The Company hereby agrees to use commercially reasonable
efforts to list or quote all of the Shares and Warrant Shares on the principal Trading Market and
promptly secure the listing or quotation of all of the Shares and Warrant Shares on such Trading
Market. The Company further agrees, if the Company applies to have the Common
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Stock traded on any other Trading Market, it will then include in such application all of the
Shares and Warrant Shares, and will take such other action as is reasonably necessary to cause all
of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as
possible. The Company will then take all action reasonably necessary to continue the listing of
its Common Stock on a Trading Market and will comply in all respects with the Companys reporting,
filing and other obligations under the bylaws or rules of such Trading Market.
4.8 Subsequent Equity Sales. From the date hereof until 15 days after the Closing
Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any shares of Common Stock or Common Stock
Equivalents. Notwithstanding the foregoing, this Section 4.8 shall not apply in respect of an
Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance.
4.9 Equal Treatment of Purchasers. No consideration (including any modification of
any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless the same consideration is
also offered to all of the parties to the Transaction Documents. For clarification purposes, this
provision constitutes a separate right granted to each Purchaser by the Company and negotiated
separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class
and shall not in any way be construed as the Purchasers acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or otherwise.
4.10 Certain Transactions and Confidentiality. Each Purchaser, severally and not
jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or pursuant to any understanding with it will execute any purchases or sales, including Short Sales
of any of the Companys securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as described in Section 4.2. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as
the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to
the initial press release as described in Section 4.2, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the information included in the
Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing and
notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in effecting transactions in any securities of the Company after the time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the
initial press release as described in Section 4.2, (ii) no Purchaser shall be restricted or
prohibited from effecting any transactions in any securities of the Company in accordance with
applicable securities laws from and after the time that the transactions contemplated by this
Agreement are first publicly announced pursuant to the initial press release as described in
Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality to the Company or its
Subsidiaries after the issuance of the initial press release as described in Section 4.2.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of such Purchasers assets and
the portfolio managers have no direct knowledge of the investment decisions made by
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the portfolio managers managing other portions of such Purchasers assets, the covenant set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager
that made the investment decision to purchase the Securities covered by this Agreement.
4.11 Capital Changes. Until one year after the Closing Date, the Company shall not
undertake a reverse or forward stock split of the Common Stock without the prior written consent of
the Purchasers holding a majority in interest of the Shares; provided, however,
that Purchasers who were original parties to this Agreement hold at least fifteen percent (15%) of
the Shares purchased pursuant to this Agreement.
ARTICLE V.
MISCELLANEOUS
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by any Purchaser, as to such
Purchasers obligations hereunder only and without any effect whatsoever on the obligations between
the Company and the other Purchasers, by written notice to the other parties, if the Closing has
not been consummated on or before January 14, 2011; provided, however, that such
termination will not affect the right of any party to sue for any breach by any other party (or
parties).
5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to
the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all
Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the delivery
of any Securities to the Purchasers.
5.3 Entire Agreement. The Transaction Documents, together with the exhibits and
schedules thereto, the Prospectus and the Prospectus Supplement, contain the entire understanding
of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of: (a) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to
5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto on a day that is not a Trading Day or later than
5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight courier service or
(d) upon actual receipt by the party to whom such notice is required to be given. The address for
such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified,
supplemented or amended except in a written instrument signed, in the case of an
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amendment, by the Company and the Purchasers holding at least 67% in interest of the Shares
based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right.
5.6 Headings. The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written consent of each
Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this
Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that
such transferee agrees in writing to be bound, with respect to the transferred Securities, by the
provisions of the Transaction Documents that apply to the Purchasers.
5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.8.
5.9 Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of the Transaction Documents shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by this Agreement and any
other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the
City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an
inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by mailing a
copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner
permitted by law. If either party shall commence an action, suit or proceeding to enforce any
provisions of the Transaction Documents, then, in addition to the obligations of the Company under
Section 4.5, the prevailing party in such action,
22
suit or proceeding shall be reimbursed by the other party for its reasonable attorneys fees
and other costs and expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
5.10 Survival. The representations and warranties contained herein shall survive the
Closing and the delivery of the Securities.
5.11 Execution. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and, with respect to the
Company and a Purchaser, shall become effective when counterparts have been signed by the Company
and such Purchaser and delivered to each other, it being understood that the parties need not sign
the same counterpart. In the event that any signature is delivered by facsimile transmission or by
e-mail delivery of a .pdf format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or .pdf signature page were an original thereof.
5.12 Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary
contained in (and without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein
provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time
upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that in the
case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to
return any shares of Common Stock subject to any such rescinded exercise notice concurrently with
the return to such Purchaser of the aggregate exercise price paid to the Company for such shares
and the restoration of such Purchasers right to acquire such shares pursuant to such Purchasers
Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in
lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant
for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party
23
costs (including customary indemnity) associated with the issuance of such replacement
Securities.
5.15 Remedies. In addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, each of the Purchasers and the Company will be
entitled to specific performance under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any breach of
obligations contained in the Transaction Documents and hereby agree to waive and not to assert in
any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to
any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
5.17 Independent Nature of Purchasers Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to
independently protect and enforce its rights including, without limitation, the rights arising out
of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding for such purpose. Each
Purchaser has been represented by its own separate legal counsel in its review and negotiation of
the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its
respective counsel have chosen to communicate with the Company through WS. WS does not represent
any of the Purchasers and only represents Rodman & Renshaw, LLC, the placement agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any of the
Purchasers. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company and a Purchaser, solely, and not
between the Company and the Purchasers collectively and not between and among the Purchasers.
5.18 Liquidated Damages. The Companys obligations to pay any partial liquidated
damages or other amounts owing under the Transaction Documents is a continuing obligation of
24
the Company and shall not terminate until all unpaid partial liquidated damages and other
amounts have been paid notwithstanding the fact that the instrument or security pursuant to which
such partial liquidated damages or other amounts are due and payable shall have been canceled.
5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not be a Business Day,
then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction. The parties agree that each of them and/or their respective counsel
have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal
rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any
Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common Stock that occur after
the date of this Agreement.
5.21 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION
BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND
EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
25
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.
ADVENTRX PHARMACEUTICALS, INC. | Address for Notice: | |||
By: |
12390 El Camino Real, Suite 150 | |||
Name:
|
San Diego, CA 92130 | |||
Title: |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO ANX SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly
executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser: _________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Facsimile Number of Authorized Signatory: __________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription Amount: $_________________
Shares: _________________
Series A Warrant Shares: __________________
Series B Warrant Shares: __________________
EIN Number (if applicable): _________________
o Notwithstanding anything contained in this Agreement to the contrary, by checking
this box (i) the obligations of the above-signed to purchase the securities set forth in this
Agreement to be purchased from the Company by the above-signed, and the obligations of the Company
to sell such securities to the above-signed, shall be unconditional and all conditions to Closing
shall be disregarded, (ii) the Closing shall occur on the third (3rd) Trading Day
following the date of this Agreement and (iii) any condition to Closing contemplated by this
Agreement (but prior to being disregarded by clause (i) above) that required delivery by the
Company or the above-signed of any agreement, instrument, certificate or the like or purchase price
(as applicable) shall no longer be a condition and shall instead be an unconditional obligation of
the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate
or the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE PAGES CONTINUE]
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Exhibit 4.2
[SERIES A/B] COMMON STOCK PURCHASE WARRANT
ADVENTRX PHARMACEUTICALS, INC.
Warrant No.: _________
|
Initial Exercise Date: January 11, 2011 | |
Warrant Shares: _______ |
THIS [SERIES A/B] COMMON STOCK PURCHASE WARRANT (this Warrant) certifies that, for
value received, _____________ (the Holder) is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on or after the
Initial Exercise Date (as defined above) and on or prior to the close of business on ________1 (the Termination Date)
but not thereafter, to subscribe for and purchase from ADVENTRX Pharmaceuticals, Inc., a Delaware
corporation (the Company), up to ______ shares (the Warrant Shares) of Common
Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the
Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in that certain Securities Purchase Agreement (the
Purchase Agreement), dated January 6, 2011, among the Company and the parties that are
signatories thereto.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the Company (or such
other office or agency of the Company as it may designate by notice in writing to the
registered Holder at the address of the Holder appearing on the books of the Company) of a
duly executed facsimile copy of the Notice of Exercise Form annexed hereto. Within three (3)
Trading Days following the date of exercise as aforesaid, the Holder shall deliver the
aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by
wire transfer of immediately available funds, or pursuant to the cashless exercise procedure
specified in Section 2(c) below, if such cashless exercise procedure is available and is
specified in the applicable Notice of Exercise. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender this Warrant to the
Company until the Holder has purchased all of the Warrant Shares available hereunder and
this Warrant has been exercised in full, in which case, the Holder shall surrender this
Warrant to the Company for cancellation within three (3) Trading Days after the date the
final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant
resulting in purchases of a portion of the
1 | One year and five Trading Days from the Initial Exercise Date the for the Series A Warrants; five years from the Initial Exercise Date for the Series B Warrants |
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise Form within 1 Business Day after receipt of such notice. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. |
b) Exercise Price. The exercise price per share of the Common Stock under this
Warrant shall be $2.75, subject to adjustment hereunder (the Exercise Price).
c) Cashless Exercise. If at the time of exercise hereof there is no effective
registration statement registering, or the prospectus contained therein is not available for
the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised,
in whole or in part, at such time by means of a cashless exercise in which the Holder
shall be entitled to receive that number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = | the VWAP on the Trading Day immediately preceding the date on which the Holder elects to exercise this Warrant by means of a cashless exercise, as set forth in the applicable Notice of Exercise; |
(B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
(X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
VWAP means, for any date, the price determined by the first of the following
clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market,
the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as
reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to
4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is not a Trading Market, the
volume weighted average price of the Common Stock for such date (or the nearest preceding
date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for
trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in
the Pink Sheets published by Pink OTC Markets, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the
Common Stock so reported, or (d) in all other cases, the fair market value of a share of
Common Stock as determined by an independent appraiser selected in good faith by the Company
and reasonably
2
acceptable to the Holders of a majority in interest of the Securities then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by
the Company.
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. Warrant Shares
purchased hereunder shall be transmitted by the Transfer Agent to the Holder
by crediting the account of the Holders prime broker with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system
(DWAC) if the Company is then a participant in such system and
either (A) there is an effective registration statement permitting the
issuance of the Warrant Shares to the Holder or (B) this Warrant is being
exercised via cashless exercise, and otherwise by physical delivery to the
address specified by the Holder in the Notice of Exercise, in each case by
the date that is three (3) Trading Days after the latest of (A) the delivery
to the Company of the Notice of Exercise and receipt of the DWAC request
from the Holders prime broker (if applicable), (B) surrender of this
Warrant (if required) and (C) payment of the aggregate Exercise Price as set
forth above (including by cashless exercise, if permitted) (such date, the
Warrant Share Delivery Date). The Warrant Shares shall be deemed
to have been issued, and the Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date this Warrant has been properly
exercised, with payment to the Company of the Exercise Price (or by cashless
exercise, if permitted) and all taxes required to be paid by the Holder, if
any, pursuant to Section 2(d)(vi) prior to the issuance of such shares,
having been paid.
ii. Delivery of New Warrants Upon Exercise. If this Warrant
shall have been exercised in part, the Company shall, at the request of the
Holder and upon surrender of this Warrant certificate, at the time of
delivery of the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to purchase
the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical to this Warrant.
iii. Rescission Rights. If the Company fails to cause the
Transfer Agent to transmit either to the Holders prime broker the Warrant
Shares or to the Holder a certificate or the certificates representing the
Warrant Shares, as applicable pursuant to Section 2(d)(i) hereof, by the
Warrant Share Delivery Date, then, the Holder will have the right to rescind
such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Shares
Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to instruct the Transfer Agent to transmit to the
3
Holders prime broker the Warrant Shares, or to the Holder a
certificate or the certificates representing the Warrant Shares, pursuant to
an exercise on or before the Warrant Share Delivery Date, and if after such
date the Holder is required by its broker to purchase (in an open market
transaction or otherwise) or the Holders brokerage firm otherwise
purchases, shares of Common Stock to deliver in satisfaction of a sale by
the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a Buy-In), then the Company shall (A) pay in cash
to the Holder the amount, if any, by which (x) the Holders total purchase
price (including brokerage commissions, if any) for the shares of Common
Stock so purchased exceeds (y) the amount obtained by multiplying (1) the
number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (2) the price at which
the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of this Warrant
and equivalent number of Warrant Shares for which such exercise was not
honored (in which case such exercise shall be deemed rescinded) or deliver
to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases Common Stock
having a total purchase price of $11,000 to cover a Buy-In with respect to
an attempted exercise of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (A) of the
immediately preceding sentence the Company shall be required to pay the
Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In and
evidence of the amount of such loss. Nothing herein shall limit a Holders
right to pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Companys failure to timely
deliver certificates representing shares of Common Stock upon exercise of
this Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which the Holder would
otherwise be entitled to purchase upon such exercise, the Company shall, at
its election, either pay a cash adjustment in respect of such final fraction
in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company,
and such certificates shall be issued in the name of the Holder
4
or in such name or names as may be directed by the Holder;
provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder and the Company
may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
vii. Closing of Books. The Company will not close its
stockholder books or records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof.
e) Holders Exercise Limitations. The Company shall not effect any exercise of
this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant,
pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with
the Holders Affiliates, and any other Persons acting as a group together with the Holder or
any of the Holders Affiliates) would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of shares of Common Stock which
would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of
the unexercised or nonconverted portion of any other securities of the Company (including,
without limitation, any other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by
the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it
being acknowledged by the Holder that the Company is not representing to the Holder that
such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(e) applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable shall be
in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be
deemed to be the Holders determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates) and of which portion
of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such
determination and shall have no liability for exercises of this Warrant that are not in
compliance with the Beneficial Ownership Limitation. In addition, a determination as to
any group status as contemplated above shall be determined in accordance with Section 13(d)
of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of
this Section 2(e), in determining the number of
5
outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Companys most recent periodic or annual
report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock outstanding. Upon the written or oral
request of a Holder, the Company shall within two Trading Days confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the
number of outstanding shares of Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this Warrant, by the Holder
or its Affiliates since the date as of which such number of outstanding shares of Common
Stock was reported. The Beneficial Ownership Limitation shall be 4.99% of the
number of shares of the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon
not less than 61 days prior notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock upon exercise of
this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to
apply. Any such increase or decrease will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to
make changes or supplements necessary or desirable to properly give effect to such
limitation. The limitations contained in this paragraph shall apply to a successor holder of
this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant
is outstanding: (i) pays a dividend or otherwise makes a distribution or distributions, in
each case payable in shares of its Common Stock, to all holders of Common Stock (and not to
the Holders) (excluding, for avoidance of doubt, any shares of Common Stock issued by the
Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock
into a larger number of shares, or (iii) combines (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares, then in each case the
Exercise Price shall be multiplied by a fraction, of which the numerator shall be the number
of shares of Common Stock (excluding treasury shares, if any) outstanding at 5:00 p.m. (New
York City time) on the Trading Day immediately before such event, and of which the
denominator shall be the number of shares of Common Stock that would be outstanding
immediately after, and solely as a result of, such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate
Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this
Section 3(a) shall become effective immediately prior to 9:00 a.m. (New York city time) on
the Ex-Dividend Date for such dividend or distribution or the effective date of such
subdivision
6
or combination, as the case may be. Ex-Dividend Date means, when used with
respect to any dividend, distribution or issuance, the first date on which the share of
Common Stock trade on the Trading Market, regular way, without the right to receive the
relevant dividend, distribution or issuance.
b)
Subsequent Rights Offerings. If the Company, at any time while the Warrant is
outstanding, shall issue rights, options or warrants to all holders of Common Stock (and
not to the Holder) entitling them to subscribe for or purchase shares of Common Stock,
the same rights, options or warrants shall be issued to the Holder as if the then-unexercised portion
of this Warrant had been exercised in full.
c) Pro Rata Distributions.
If the Company, at any time while this Warrant is
outstanding, shall distribute to all holders of Common Stock (and not to the Holder)
evidences of its indebtedness or assets (including cash and cash dividends) or rights or
warrants to subscribe for or purchase any security other than the Common Stock (which
shall be subject to Section 3(a)), then in each such case the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such distribution by a fraction
of which the denominator shall be the VWAP determined as of the record date
mentioned above, and of which the numerator shall be such VWAP on such record
date less the then per share fair market value at such record date of the portion of such
assets or evidence of indebtedness so distributed applicable to one outstanding share
of the Common Stock as determined by the Board of Directors in good faith. In each
case the adjustments shall be described in a statement provided to the Holder of the
portion of assets or evidences of indebtedness so distributed or such subscription rights
applicable to one share of Common Stock. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after the record
date mentioned above.
d) Fundamental Transaction. If, at any time while this Warrant is outstanding,
(i) the Company, directly or indirectly, in one or more related transactions effects any
merger or consolidation of the Company with or into another Person and the Company is not
the surviving corporation, (ii) the Company, directly or indirectly, effects any sale,
lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are permitted to
sell, tender or exchange their shares for other securities, cash or property and has been
accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company,
directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property, (v) the Company, directly or indirectly, in one or more
related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with another Person or group of Persons whereby such other Person or
group of Persons acquires more than 50% of the outstanding shares of Common Stock (not
including any shares of Common Stock held by the other Person or other Persons making or
party to, or associated or affiliated with the other Persons making or party to, such stock
or share purchase agreement or other business combination) (each a Fundamental
Transaction) then, upon any subsequent exercise of this Warrant, the Holder shall have
the right to receive, for each Warrant Share that would have been issuable upon such
exercise immediately prior to the occurrence of such Fundamental Transaction, at the option
of the Holder (without regard to any limitation in Section 2(e) on the exercise of this
Warrant), the number of shares of Common Stock of the successor or acquiring corporation or
of the Company, if it is the surviving corporation, and any additional consideration (the
Alternate Consideration) receivable as a result of such Fundamental Transaction by
a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in
Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and the Company shall
apportion the Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be
received in a Fundamental Transaction, then the Holder shall be given the same choice as to
the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction.
Notwithstanding anything to the contrary, in the event of a Fundamental Transaction
that is (1) an all cash transaction, (2) a Rule 13e-3 transaction as defined in Rule 13e-3
under the Exchange Act, or (3) a Fundamental Transaction involving a person or entity
not traded on a national securities exchange, including, but not limited to, the NYSE
Amex, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq
Capital Market, the Company or any Successor Entity (as defined below) shall, at the
Holders option, exercisable at any time concurrently with, or within 30 days after, the
consummation of the Fundamental Transaction, purchase this Warrant from the Holder
by paying to the Holder an amount of cash equal to the Black Scholes Value of the
remaining unexercised portion of this Warrant on the date of the consummation of such
Fundamental Transaction. Black Scholes Value means the value of this Warrant based
on the Black and Scholes Option Pricing Model obtained from the OV function on
Bloomberg, L.P. (Bloomberg) determined as of the day of consummation of the
applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the time
between the date of the public announcement of the applicable Fundamental
Transaction and the Termination Date, (B) an expected volatility equal to the greater of
100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the
Trading Day immediately following the public announcement of the applicable
Fundamental Transaction, (C) the underlying price per share used in such calculation
shall be the sum of the price per share being offered in cash, if any, plus the value of
any non-cash consideration, if any, being offered in such Fundamental Transaction and
(D) a remaining option time equal to the time between the date of the public
announcement of the applicable Fundamental Transaction and the Termination Date.
The Company shall cause any successor entity in a Fundamental Transaction in which
the Company is not the survivor (the Successor Entity) to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction Documents in
accordance with the provisions of this Section 3(d) pursuant to written agreements and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a
security of the Successor Entity evidenced by a written instrument substantially similar in
form and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity) equivalent to the
shares of Common Stock acquirable and receivable upon exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) prior to such
Fundamental Transaction, and with an exercise price which applies the exercise price
hereunder to such shares of capital stock (but taking into account the relative value of
the shares of Common Stock pursuant to such Fundamental Transaction and the value
of such shares of capital stock, such number of shares of capital stock and such
exercise price being for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is
reasonably satisfactory in form and substance to the Holder. Upon the occurrence of
any such Fundamental Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of such Fundamental Transaction, the
provisions of this Warrant and the other Transaction Documents referring to the
Company shall refer instead to the Successor Entity), and may exercise every right
and power of the Company and shall assume all of the obligations of the Company
under this Warrant and the other Transaction Documents with the same effect as if such
Successor Entity had been named as the Company herein.
7
e) Calculations. All calculations under this Section 3 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this
Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock
(excluding treasury shares, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is
adjusted pursuant to any provision of this Section 3, the Company shall
promptly mail to the Holder a notice setting forth the Exercise Price after
such adjustment and setting forth a brief statement of the facts requiring
such adjustment.
ii. Notice to Allow Exercise by Holder. If during the term in
which this Warrant may be exercised by the Holder (A) the Company shall
declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash
dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock rights or warrants
to subscribe for or purchase any shares of capital stock of any class, (D)
the approval of any stockholders of the Company shall be required in
connection with any reclassification of the Common Stock, any consolidation
or merger to which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, or any compulsory share
exchange whereby the Common Stock is converted into other securities, cash
or property, or (E) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, then,
in each case, the Company shall cause to be mailed to the Holder at its last
address as it shall appear upon the Warrant Register of the Company, at
least 20 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to
be taken for the purpose of such dividend, distribution, redemption, rights
or warrants, or if a record is not to be taken, the date as of which the
holders of the Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the
failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be
specified in such notice. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information regarding the
Company or any of the Subsidiaries, the
8
Company shall simultaneously disclose such information in compliance
with applicable securities laws. The Holder shall remain entitled to
exercise this Warrant during the period commencing on the date of such
notice to the effective date of the event triggering such notice except as
may otherwise be expressly set forth herein.
Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with applicable securities laws,
this Warrant and all rights hereunder are transferable, in whole and not in part, upon
surrender of this Warrant at the principal office of the Company or its designated agent,
together with a written assignment of this Warrant substantially in the form attached hereto
duly executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant in the name of
the assignee and this Warrant shall promptly be cancelled. This Warrant, if properly
assigned in accordance herewith, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
b) New Warrants. This Warrant may be combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any
transfer which may be involved in such combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for this Warrant or Warrants to be combined in
accordance with such notice. All Warrants issued on transfers or exchanges shall include
reference to the initial issuance date set forth on the first page of this Warrant and shall
be identical with this Warrant except as to the number of Warrant Shares issuable pursuant
thereto and the Warrant number.
c) Warrant Register. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the Warrant Register), in the name
of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
written notice to the contrary.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the
Holder to any voting rights, dividends or other rights as a stockholder of the Company prior
to the exercise hereof as set forth in Section 2(d)(i).
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of indemnity or security
9
reasonably satisfactory to it, and upon surrender and cancellation of such Warrant or
stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or
stock certificate. Applicants for a replacement Warrant under such circumstances shall also
comply with such other reasonable regulations and procedures and pay such other reasonable
charges as the Company may prescribe.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein shall not be
a Business Day, then, such action may be taken or such right may be exercised on the next
succeeding Business Day.
d) No Inconsistent Actions. Except and to the extent as waived or consented to
by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other voluntary
action, 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 actions as may be necessary or appropriate to protect the
rights of Holder as set forth in this Warrant against impairment. Without limiting the
generality of the foregoing, the Company will (i) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable Warrant Shares
upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations
under this Warrant.
e) Jurisdiction. All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be determined in accordance with the
provisions of the Purchase Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon
the exercise of this Warrant, if not registered, will have restrictions upon resale imposed
by state and federal securities laws unless the Holder utilizes the cashless exercise
provisions hereof.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of the Holder shall operate as a waiver of such
right or otherwise prejudice Holders rights, powers or remedies. Without limiting any
other provision of this Warrant or the Purchase Agreement, if the Company willfully and
knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be
sufficient to cover any costs and expenses including, but not limited to, reasonable
attorneys fees, including those of appellate proceedings, incurred by Holder
10
in collecting any amounts due pursuant hereto or in otherwise enforcing any of its
rights, powers or remedies hereunder.
h) Notices. Any notice, request or other document required or permitted to be
given or delivered to the Holder by the Company shall be delivered to the registered Holder
at the last address as it shall appear upon the Warrant Register of the Company.
i) Limitation of Liability. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of Holder, shall give rise to any liability
of Holder for the purchase price of any Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to seek specific performance
of its rights under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Warrant and hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant
and the rights and obligations evidenced hereby shall inure to the benefit of and be binding
upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any
Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of
Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof
waived with the written consent of the Company and the Holder.
m) Severability. Wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of
reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Pages Follow)
11
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer
thereunto duly authorized as of the date first above indicated.
ADVENTRX PHARMACEUTICALS, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
12
NOTICE OF EXERCISE
TO: ADVENTRX PHARMACEUTICALS, INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant
to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of
the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] [if permitted] the cancellation of such number of Warrant Shares as is
necessary, in accordance with the formula set forth in subsection 2(c), to
exercise this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in subsection
2(c).
(3) Unless the Warrant Shares will be delivered electronically via DWAC, please issue a
certificate or certificates representing said Warrant Shares in the name of the undersigned or in
such other name as is specified below:
_____________________
and deliver the physical certificate representing said Warrant Shares to the following address:
.
If the Warrant Shares will be delivered electronically via DWAC, please issue them to the
following account:
o | Name of DTC Participant: _____________________ | ||
o | DTC Participant Number: _____________________ | ||
o | Name of Account at DTC Participant to be credited with the Warrant Shares: | ||
_____________________ | |||
o | Account Number at DTC Participant to be credited with the Warrant Shares: | ||
_____________________ |
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to exercise the Warrant.)
this form and supply required information.
Do not use this form to exercise the Warrant.)
FOR VALUE RECEIVED, all of the shares of the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
___________________________ whose address is
______________________.
Dated: ______________, _______
Holders Signature: | ||||||
Holders Address: | ||||||
Signature Guaranteed: _______________________
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatsoever, and must be
guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign the foregoing
Warrant.
Exhibit 5.1
DLA Piper LLP (US) | ||
4365 Executive Drive, Suite 1100 | ||
San Diego, California 92121-2133 | ||
www.dlapiper.com | ||
T 858.677.1400 | ||
F 858.677.1401 |
January 6, 2011
ADVENTRX Pharmaceuticals, Inc.
12390 El Camino Real, Suite 150
San Diego, California 92130
12390 El Camino Real, Suite 150
San Diego, California 92130
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the sale and
issuance by ADVENTRX Pharmaceuticals, Inc., a Delaware corporation (the Company), of up to an
aggregate of 8,184,556 shares of Common Stock, par value $0.001 per share, of the Company (the
Common Shares), together with warrants to
purchase up to an additional 4,092,278 shares of
Common Stock (the Warrants), and 4,092,278 shares of Common Stock of the Company issuable
upon exercise of the Warrants (the Underlying Common and together with the Warrants and the
Common Shares, the Securities), pursuant to a Registration Statement on Form S-3 (File No.
333-165691) (the Registration Statement) filed with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Act), the related prospectus
included therein (the Prospectus) and the Prospectus Supplement No. 2 to be filed with the
Commission pursuant to Rule 424(b) promulgated under the Act (the Prospectus Supplement).
In connection with this opinion, we have examined and relied upon the Registration Statement,
the related Prospectus and Prospectus Supplement, the Securities
Purchase Agreement, dated January 6, 2011, by and among the Company and each purchaser identified on the signature pages thereto
(the Securities Purchase Agreement), the form of Warrant to be filed as an exhibit to a Current
Report of the Company on Form 8-K, the Companys Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws, as currently in effect, and the originals or copies certified to
our satisfaction of such other documents, records, certificates, memoranda and other instruments as
in our judgment are necessary or appropriate to enable us to render the opinion expressed below.
In rendering this opinion, we have assumed the genuineness and authenticity of all signatures
on original documents; the genuineness and authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as copies; the accuracy,
completeness and authenticity of certificates of public officials; and the due authorization,
execution and delivery of all documents where due authorization, execution and delivery are
prerequisites to the effectiveness of such documents. With regard to the
Conversion Securities and Underlying Securities, we have assumed that at the time of issuance or
sale, a sufficient number of shares of Common Stock are authorized and available for issuance.
On the
basis of the foregoing, and in reliance thereon, we are of the opinion that (i) the
Common Shares, when issued and sold against payment therefore as provided in the Securities
ADVENTRX Pharmaceuticals, Inc.
January 6, 2011
Page Two
January 6, 2011
Page Two
Purchase Agreement and in accordance with the Registration Statement and the related Prospectus and
Prospectus Supplement, will be validly issued, fully paid and nonassessable, (ii) provided that the
Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers
thereof against payment therefor, then the Warrants, when issued and sold as provided in the
Securities Purchase Agreement and in accordance with the Registration Statement and the related
Prospectus and Prospectus Supplement, will be valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and (iii) the Underlying Common,
when issued and sold against payment therefor in accordance with the terms of the Securities
Purchase Agreement and Warrants and in accordance with the Registration Statement and the related
Prospectus and Prospectus Supplement, will be validly issued, fully paid and nonassessable.
In addition to the qualifications set forth above, the foregoing opinion is further qualified as
follows:
(a) The foregoing opinion is rendered as of the date hereof. We assume no obligation
to update such opinion to reflect any facts or circumstances that may hereafter come to our
attention or changes in the law which may hereafter occur.
(b) We are members of the Bar of the State of California and we do not express any opinion herein
concerning any law other than the Delaware General Corporation Law, the substantive law of the
State of California and the substantive federal securities laws of the United States of America.
We express no opinion as to the laws of any other state or jurisdiction of the United States or of
any foreign jurisdiction. We have made no inquiry into the laws and regulations or as to laws
relating to choice of law or conflicts of law principles. The opinion expressed herein is subject
to the effect of judicial decisions which may permit the introduction of parol
evidence to modify the terms or the interpretation of agreements.
(c) We express no opinion as to compliance with the securities (or blue sky), broker
licensing, real estate syndication or mortgage lending laws of any jurisdiction.
(d) The opinion stated herein relating to the validity and binding nature of
obligations of the Company is subject to (i) the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors rights generally and (ii)
the effect of general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
(e) This opinion is limited to the matters set forth herein, and no other opinion
should be inferred beyond the matters expressly stated.
ADVENTRX Pharmaceuticals, Inc.
January 6, 2011
Page Three
January 6, 2011
Page Three
We consent to the reference to our firm under the caption Legal Matters in the Prospectus
Supplement and to the filing of this opinion as an exhibit to a Current Report of the Company on
Form 8-K. In giving our consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ DLA Piper LLP (US)
DLA Piper LLP (US)
Exhibit 10.1
![(LOGO)](https://cdn.kscope.io/011420c401a2803f4c0b96d12e8028db-a58242a5824201.gif)
January 5, 2011
STRICTLY CONFIDENTIAL
Mr. Brian M. Culley
Chief Executive Officer
Adventrx Pharmaceuticals Inc.
6725 Mesa Ridge Road
Suite 100
San Diego, CA 92121
Chief Executive Officer
Adventrx Pharmaceuticals Inc.
6725 Mesa Ridge Road
Suite 100
San Diego, CA 92121
Dear Mr. Culley:
This letter (this Agreement) constitutes the agreement between Adventrx
Pharmaceuticals Inc. (the Company) and Rodman & Renshaw, LLC (Rodman or the
Placement Agent) that Rodman shall serve as the exclusive (i) placement agent for the
Company (Direct Placement) on a reasonable best efforts basis or (ii) underwriter for the
Company, on a firm commitment basis (Underwritten Placement), in connection with the
proposed reasonable best efforts placement or series of placements to occur during the term of this
Agreement (the Placement). The Placement shall consist of registered or unregistered
securities (the Securities) of the Company, which Securities may include one or any
combination of the following: shares of the Companys common stock, par value $0.001 per share (the
Common Stock), warrants to purchase shares of Common Stock (Warrants) or
securities of the Company convertible into shares of Common Stock of the Company Convertible
Securities). The terms of such Placement and the Securities shall be mutually agreed upon by
the Company, Rodman and, if a Direct Placement, the purchasers (each, a Purchaser and
collectively, the Purchasers) and nothing herein implies that Rodman would have the power
or authority to bind the Company or any Purchaser, and the Company shall not, and nothing herein
implies that the Company shall, have an obligation to issue any Securities or complete a Placement.
This Agreement and the documents executed and delivered by the Company and the Purchasers in
connection with a Placement shall be collectively referred to herein as the Transaction
Documents. The date of a closing of a Placement shall be referred to herein as the
Closing Date. The Company expressly acknowledges and agrees that the execution of this
Agreement does not constitute a commitment by Rodman or any Purchaser to purchase the Securities
and does not ensure the successful placement of the Securities or any portion thereof or the
success of Rodman with respect to securing any other financing on behalf of the Company. In the
event the Placement will consist of registered securities, the provisions of Annex A will
apply in addition to the provisions set forth herein.
In the event that a Placement is an Underwritten Placement, prior to the commencement of the
Underwritten Placement, the Company shall negotiate the terms of an underwriting agreement with
Rodman, the starting point of which shall be Rodmans standard form, modified as appropriate to
reflect the terms of an Underwritten Placement and containing such terms, covenants, conditions,
representations, warranties, and providing for the delivery of legal opinions, comfort letters and
officers certificates, all in form and substance satisfactory to Rodman and its counsel and the
Company.
In the event that a Placement is a Direct Placement, the sale of Securities to any Purchaser
will be evidenced by a purchase agreement (Purchase Agreement) between the Company and
such Purchaser in a form reasonably satisfactory to the Company and Rodman. Prior to the signing
of any Purchase
Rodman & Renshaw, LLC o 1251 Avenue of the Americas, 20th Floor, New York, NY 10020
Tel: 212 356 0500 o Fax: 212 581 5690 o www.rodm.com o Member: FINRA, SIPC
Tel: 212 356 0500 o Fax: 212 581 5690 o www.rodm.com o Member: FINRA, SIPC
Agreement, officers of the Company with responsibility for financial affairs will be available
to answer inquiries from prospective Purchasers.
A. Fees. In connection with the Services described above, the Company shall pay to
Rodman the following compensation:
1. Placement Agents Fee. The Company shall pay to Rodman a cash placement fee (the
Placement Agents Fee) equal to 6.5% of the aggregate purchase price paid by each
purchaser of Securities that are placed in a Placement during the Term. The Placement Agents Fee
shall be paid at the closing of the Placement (the Closing) from the gross proceeds of
the Securities sold.
2. Warrants. As additional compensation for the Services, the Company shall issue to
Rodman or its designees at the Closing, warrants (the Rodman Warrants) to purchase that
number of shares of common stock of the Company (Shares) equal to 5% of the aggregate
number of Shares placed in the Placement, plus any Shares underlying any convertible Securities
sold in the Placement to such purchasers, but excluding shares underlying any warrants issued to
investors in the Placement. The Rodman Warrants shall have the same terms as the warrants issued
to investors (Investors) in the Placement, except that the exercise price shall be 125%
of the public offering price per share and they shall have an exercise period of five years from
the effective date of the shelf registration statement referred to in Section 2.A of Annex A,
attached hereto. If no warrants are issued to Investors, the Rodman Warrants shall have an
exercise price equal to 125% of the price at which Shares are issued to Investors, or, if no Shares
are issued, 125% of the current market price of the Shares on the Closing Date and an exercise
period of five years from the effective date of the shelf registration statement referred to in
Section 2.A of Annex A, attached hereto. If required by FINRA Rule 5110, the Rodman Warrants shall
not be transferable for six months from the date of the Placement, and further, the number of
Shares underlying the Rodman Warrants shall be reduced if necessary to comply with FINRA rules or
regulations.
B. Term and Termination of Engagement. The term (the Term) of Rodmans
engagement will begin on the date hereof and end on the earlier of the consummation of the
Placement or two business days after the receipt by either party hereto of written notice of
termination; provided that no such notice may be given by the Company for a period of 30 days after
the date hereof. Notwithstanding anything to the contrary contained herein, the provisions
concerning confidentiality, indemnification and contribution contained herein and the Companys
obligations contained in Section H hereof will survive any expiration or termination of this
Agreement, and the Companys obligation to pay fees actually earned and payable and
to reimburse expenses actually incurred and reimbursable pursuant to Section A hereof, if
any, will survive any expiration or termination of this Agreement, as permitted by FINRA Rule
5110(f)(2)(d). Upon any expiration or termination of this Agreement, the Companys obligation to
reimburse Rodman for out of pocket accountable expenses actually incurred by Rodman and
reimbursable upon closing of the Placement pursuant to Section A, if any, or otherwise due under
Section A hereof, will survive any expiration or termination of this Agreement, as permitted by
FINRA Rule 5110(f)(2)(d).
C. [Intentionally Omitted]
D. Use of Information. The Company will furnish Rodman such written information as
Rodman reasonably requests in connection with the performance of its services hereunder. The
Company understands, acknowledges and agrees that, in performing its services hereunder, Rodman
will use and rely entirely upon such information as well as publicly available information
regarding the Company and other potential parties to an Placement and that Rodman does not assume
responsibility for independent verification of the accuracy or completeness of any information,
whether publicly available or otherwise
2
furnished to it, concerning the Company or otherwise relevant to an Placement, including,
without limitation, any financial information, forecasts or projections considered by Rodman in
connection with the provision of its services.
E. Confidentiality. In the event of the consummation or public announcement of any
Placement, Rodman shall have the right to disclose its participation in such Placement, including,
without limitation, the placement at its cost of tombstone advertisements in financial and other
newspapers and journals. Rodman agrees not to use any confidential information concerning the
Company provided to Rodman by the Company for any purposes other than those contemplated under this
Agreement.
F. Securities Matters. The Company shall be responsible for any and all compliance
with the securities laws applicable to it, including Regulation D and the Securities Act of 1933,
as amended (the Securities Act), and Rule 506 promulgated thereunder, and unless
otherwise agreed in writing, all state securities (blue sky) laws. Rodman agrees to cooperate
with counsel to the Company in that regard.
G. Company Acknowledgement. The Company acknowledges that the Placement of
convertible Securities may create significant risks, including the risk that the Company may have
insufficient cash resources and/or registered shares to timely meet its payment and conversion
obligations. The Company further acknowledges that, depending on the number and price of new
shares issued, such transaction may result in substantial dilution which could adversely affect the
market price of the Companys shares.
H. Indemnity.
1. In connection with the Companys engagement of Rodman as placement agent, the Company
hereby agrees to indemnify and hold harmless Rodman and its affiliates, and the respective
controlling persons, directors, officers, members, shareholders, agents and employees of any of the
foregoing (collectively the Indemnified Persons), from and against any and all claims, actions,
suits, proceedings (including those of shareholders), damages, liabilities and expenses incurred by
any of them (including the reasonable fees and expenses of counsel), as incurred, (collectively a
Claim), that are (A) related to or arise out of (i) any actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to be made) by the Company, or (ii)
any actions taken or omitted to be taken by any Indemnified Person in connection with the Companys
engagement of Rodman, or (B) otherwise relate to or arise out of Rodmans activities on the
Companys behalf under Rodmans engagement, and the Company shall reimburse any Indemnified Person
for all expenses (including the reasonable fees and expenses of counsel) as incurred by such
Indemnified Person in connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened litigation in which any
Indemnified Person is a party. The Company will not, however, be responsible for any Claim that is
finally judicially determined to have resulted from the gross negligence or willful misconduct of
any person seeking indemnification for such Claim. The Company further agrees that no Indemnified
Person shall have any liability to the Company for or in connection with the Companys engagement
of Rodman except for any Claim incurred by the Company as a result of such Indemnified Persons
gross negligence or willful misconduct.
2. The Company further agrees that it will not, without the prior written consent of Rodman,
settle, compromise or consent to the entry of any judgment in any pending or threatened Claim in
respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is
an actual or potential party to such Claim), unless such settlement, compromise or consent includes
an unconditional, irrevocable release of each Indemnified Person from any and all liability arising
out of such Claim.
3
3. Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion
or institution of any Claim with respect to which indemnification is being sought hereunder, such
Indemnified Person shall notify the Company in writing of such complaint or of such assertion or
institution but failure to so notify the Company shall not relieve the Company from any obligation
it may have hereunder, except and only to the extent such failure results in the forfeiture by the
Company of substantial rights and defenses. If the Company so elects or is requested by such
Indemnified Person, the Company will assume the defense of such Claim, including the employment of
counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses
of such counsel. In the event, however, that legal counsel to such Indemnified Person reasonably
determines that having common counsel would present such counsel with a conflict of interest or if
the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and
legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition to those available to
the Company, then such Indemnified Person may employ its own separate counsel to represent or
defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses
of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or
diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified
Party shall have the right, but not the obligation, to defend, contest, compromise, settle, assert
crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified
by the Company therefor, including without limitation, for the reasonable fees and expenses of its
counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. In
addition, with respect to any Claim in which the Company assumes the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.
4. The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held
by a court to be unavailable for any reason then (whether or not Rodman is the Indemnified Person),
the Company and Rodman shall contribute to the Claim for which such indemnity is held unavailable
in such proportion as is appropriate to reflect the relative benefits to the Company, on the one
hand, and Rodman on the other, in connection with Rodmans engagement referred to above, subject to
the limitation that in no event shall the amount of Rodmans contribution to such Claim exceed the
amount of fees actually received by Rodman from the Company pursuant to Rodmans engagement. The
Company hereby agrees that the relative benefits to the Company, on the one hand, and Rodman on the
other, with respect to Rodmans engagement shall be deemed to be in the same proportion as (a) the
total value paid or proposed to be paid or received by the Company pursuant to the Placement
(whether or not consummated) for which Rodman is engaged to render services bears to (b) the fee
paid or proposed to be paid to Rodman in connection with such engagement.
5. The Companys indemnity, reimbursement and contribution obligations under this Agreement
(a) shall be in addition to, and shall in no way limit or otherwise adversely affect any rights
that any Indemnified Party may have at law or at equity and (b) shall be effective whether or not
the Company is at fault in any way.
I. Limitation of Engagement to the Company. The Company acknowledges that Rodman has
been retained only by the Company, that Rodman is providing services hereunder as an independent
contractor (and not in any fiduciary or agency capacity) and that the Companys engagement of
Rodman is not deemed to be on behalf of, and is not intended to confer rights upon, any
shareholder, owner or partner of the Company or any other person not a party hereto as against
Rodman or any of its affiliates, or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the Exchange Act)), employees or agents. Unless otherwise
expressly agreed in writing by Rodman, no one other than the Company is authorized to rely upon
this Agreement or any other statements or conduct of Rodman, and no one other than the Company is
intended to be a beneficiary of this Agreement. The Company
4
acknowledges that any recommendation or advice, written or oral, given by Rodman to the
Company in connection with Rodmans engagement is intended solely for the benefit and use of the
Companys management and directors in considering a possible Placement, and any such recommendation
or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person
or be used or relied upon for any other purpose. Rodman shall not have the authority to make any
commitment binding on the Company. The Company, in its sole discretion, shall have the right to
reject any investor introduced to it by Rodman. The Company agrees that it will perform and comply
with the covenants and other obligations set forth in the purchase agreement (the Purchase
Agreement) and related transaction documents between the Company and the investors in the
Placement (collectively with the Purchase Agreement, the Transaction Documents) and that Rodman
will be entitled to rely on the representations, warranties, agreements and covenants of the
Company contained in such Transaction Documents as if such representations, warranties, agreements
and covenants were made directly to Rodman by the Company.
J. Limitation of Rodmans Liability to the Company. Rodman and the Company further
agree that neither Rodman nor any of its affiliates or any of its their respective officers,
directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), employees or agents shall have any liability to the Company, its security
holders or creditors, or any person asserting claims on behalf of or in the right of the Company
(whether direct or indirect, in contract, tort, for an act of negligence or otherwise) for any
losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating
to this Agreement or the Services rendered hereunder, except for losses, fees, damages,
liabilities, costs or expenses that arise out of or are based on any action of or failure to act by
Rodman and that are finally judicially determined to have resulted solely from the gross negligence
or willful misconduct of Rodman.
K. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be fully performed
therein. Any disputes that arise under this Agreement, even after the termination of this
Agreement, will be heard only in the state or federal courts located in the City of New York, State
of New York. The parties hereto expressly agree to submit themselves to the jurisdiction of the
foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any
rights they may have to contest the jurisdiction, venue or authority of any court sitting in the
City and State of New York. In the event of the bringing of any action, or suit by a party hereto
against the other party hereto, arising out of or relating to this Agreement, the party in whose
favor the final judgment or award shall be entered shall be entitled to have and recover from the
other party the costs and expenses incurred in connection therewith, including its reasonable
attorneys fees. Any rights to trial by jury with respect to any such action, proceeding or suit
are hereby waived by Rodman and the Company.
L. Notices. All notices hereunder will be in writing and sent by certified mail, hand
delivery, overnight delivery or fax, if sent to Rodman, to Rodman & Renshaw, LLC, at the address
set forth on the first page hereof, fax number (646) 841-1640, Attention: General Counsel, and if
sent to the Company, to the address set forth on the first page hereof, fax number (858) 552-0876,
Attention: Chief Executive Officer. Notices sent by certified mail shall be deemed received five
days thereafter, notices sent by hand delivery or overnight delivery shall be deemed received on
the date of the relevant written record of receipt, and notices delivered by fax shall be deemed
received as of the date and time printed thereon by the fax machine.
M. Miscellaneous. This Agreement shall not be modified or amended except in writing
signed by Rodman and the Company. This Agreement shall be binding upon and inure to the benefit of
both Rodman and the Company and their respective assigns, successors, and legal representatives.
This Agreement constitutes the entire agreement of Rodman and the Company with respect to this
Placement and supersedes any prior agreements with respect to the subject matter hereof. If any
provision of this
Agreement is determined to be invalid or unenforceable in any respect, such determination will
not affect such provision in any other respect, and the remainder of the Agreement shall remain in
full force and effect. This Agreement may be executed in counterparts (including facsimile
counterparts), each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
5
In acknowledgment that the foregoing correctly sets forth the understanding reached by Rodman
and the Company, please sign in the space provided below, whereupon this letter shall constitute a
binding Agreement as of the date indicated above.
Very truly yours, RODMAN & RENSHAW, LLC |
||||
By | /s/ John Borer | |||
Name: | John Borer | |||
Title: | Head of IB, Senior Managing Director | |||
Accepted and Agreed:
ADVENTRX PHARMACEUTICALS INC.
By
|
/s/ Brian M. Culley | |
Brian M. Culley | ||
Chief Executive Officer |
6
Annex A
Additional Provisions With Respect to a Registered Placement
SECTION 1. | [RESERVED] |
SECTION 2. | REGISTRATION STATEMENT. |
In the event that a Placement consists of registered Securities (whether a Direct Placement or
Underwritten Placement) off the Companys registration statement on Form S-3 (Registration File No.
333-165691), the Company represents and warrants to, and agrees with, the Placement Agent that as
of the date of the Placement, as of the date of the Purchase Agreement and as of the closing date
of the Placement (the Closing Date):
(A) The Company has filed with the Securities and Exchange Commission (the
Commission) a registration statement on Form S-3 (Registration File No. 333-165691) under
the Securities Act of 1933, as amended (the Securities Act), which became effective on
April 1, 2010, for the registration under the Securities Act of the Securities. At the time of such
filing, the Company met the requirements of Form S-3 under the Securities Act. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under
the Securities Act, and the rules and regulations (the Rules and Regulations) of the
Commission promulgated thereunder, a supplement to the form of prospectus included in such
registration statement relating to the placement of the Securities and the plan of distribution
thereof and has advised the Placement Agent of all further information (financial and other) with
respect to the Company required to be set forth therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement, is hereinafter called the
Registration Statement; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the Base Prospectus; and the supplemented
form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule
424(b) (including the Base Prospectus as so supplemented) is hereinafter called the Prospectus
Supplement. Any reference in this Agreement to the Registration Statement, the Base Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by
reference therein (the Incorporated Documents) pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), on or
before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference in this Agreement to the terms amend,
amendment or supplement with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and other information which is
contained, included, described, referenced, set forth or stated in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the Registration Statement,
the Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus
Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated
or, to the Companys knowledge, is threatened by the Commission. For purposes of this Agreement,
free writing prospectus has the meaning set forth in Rule 405 under the Securities Act and the
Time of Sale Prospectus means the preliminary prospectus, if any, together with the free
writing prospectuses, if any, used in connection with the Placement, including any documents
incorporated by reference therein.
7
(B) The Registration Statement (and any further documents to be filed with the Commission)
contains all exhibits and schedules as required by the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, complied in
all material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations and did not and, as amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, each as of its respective date, comply in all
material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus
Supplement, as amended or supplemented, did not and will not contain as of the date thereof any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none
of such documents, when they were filed with the Commission, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the statements therein (with
respect to Incorporated Documents incorporated by reference in the Base Prospectus or Prospectus
Supplement), in light of the circumstances under which they were made not misleading; and any
further documents so filed and incorporated by reference in the Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus Supplement, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. No post-effective amendment to the
Registration Statement reflecting any facts or events arising after the date thereof which
represent, individually or in the aggregate, a fundamental change in the information set forth
therein is required to be filed with the Commission. There are no documents required to be filed
with the Commission in connection with the transaction contemplated hereby that (x) have not been
filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time
period. There are no contracts or other documents required to be described in the Base Prospectus,
the Time of Sale Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described or filed as required.
(C) The Company is eligible to use free writing prospectuses in connection with the Placement
pursuant to Rules 164 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free writing prospectus that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or
that was prepared by or behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. The Company will not, without the prior consent of the Placement Agent,
prepare, use or refer to, any free writing prospectus.
(D) The Company has delivered, or will as promptly as practicable deliver, to the Placement
Agent complete conformed copies of the Registration Statement and of each consent and certificate
of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any offering material in
connection with the offering and sale of the Securities other than the Base Prospectus, the Time of
Sale Prospectus, if any, the Prospectus
8
Supplement, the Registration Statement, copies of the documents incorporated by reference
therein and any other materials permitted by the Securities Act.
In the event that a Direct Placement occurs off a registration statement other than the
Registration Statement, prior to the commencement of any such Placement, the Company shall make
written representations, warranties and covenants to Rodman as to such subsequent registration
statement (and other offering documents) that are substantially the same as the representations,
warranties and covenants made under this Section 2, which representations, warranties and covenants
shall be reasonably satisfactory to Rodman.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Except as disclosed in the SEC Reports
(as defined below) or the Registration Statement, the Base Prospectus or the Prospectus Supplement,
the Company hereby makes the representations and warranties set forth below to the Placement Agent
as of the date of the Placement, as of the date of the Purchase Agreement and as of the Closing
Date.
(A) Organization and Qualification. All of the direct and indirect subsidiaries
(individually, a Subsidiary) of the Company are set forth on Exhibit 21.1 to the
Companys Annual Report on Form 10-K. filed with the Commission on March 18, 2010. The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary
free and clear of any Liens (which for purposes of this Agreement shall mean a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right or other
restriction), and all the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. The Company and each of the Subsidiaries is an entity duly
incorporated or otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or default of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not reasonably be expected to result in (i) a material adverse effect on the
legality, validity or enforceability of any Transaction Document, (ii) a material adverse change in
the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, from that set forth or incorporated by reference in
the Base Prospectus or the Prospectus Supplement, or (iii) a material adverse effect on the
Companys ability to perform in any material respect on a timely basis its obligations under any
Transaction Document (any of (i), (ii) or (iii), a Material Adverse Effect) and no
Proceeding (which for purposes of this Agreement shall mean any action, claim, suit,
investigation or proceeding (including, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
(B) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations thereunder. The execution and delivery of
each of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, its board of directors or its stockholders in
connection therewith other than in connection with the Required Approvals (as defined in
subsection 3(D) below). Each Transaction Document has been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in
accordance with its terms except (i) as limited by general equitable principles and applicable
9
bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(C) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company, the issuance and sale of the Securities and the consummation by the
Company of the other transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Companys or any Subsidiarys certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, result in the creation of any Lien upon any of the properties or assets of the Company or
any Subsidiary, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and regulations), or by which
any property or asset of the Company or a Subsidiary is bound or affected; except in the case of
each of clauses (ii) and (iii), such as could not reasonably be expected to result in a Material
Adverse Effect.
(D) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority or other
Person (defined as an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind, including, without
limitation, any Trading Market) in connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than (i) the filings required by the Purchase
Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filling of
application(s) to and approval by the NYSE Amex LLC for the listing of the Common Stock underlying
the Securities for trading thereon in the time and manner required thereby, (iv) the filing with
the Secretary of State of the State of Delaware of the Certificate of Designation with respect to
the Securities, as applicable, and (v) such filings as are required to be made under applicable
state securities laws and the rules and regulations of the Financial Industry Regulatory Authority
(FINRA) (collectively, the Required Approvals).
(E) Issuance of the Securities; Registration. The Securities are duly authorized and,
when issued and paid for in accordance with the applicable Transaction Documents, will be duly and
validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company
other than restrictions on transfer provided for in the Transaction Documents. The Company has
reserved from its duly authorized capital stock the maximum number of shares of Common Stock
issuable pursuant to the Transaction Documents on the date the Purchase Agreement is signed and as
of the Closing Date. The issuance by the Company of the Securities has been registered under the
Securities Act and all of the Securities are freely transferable and tradable by the purchasers
thereof without restriction (other than any restrictions arising solely from an act or omission of
such a purchaser). The Securities are being issued pursuant to the Registration Statement and the
issuance of the Securities has been registered by the Company under the Securities Act. The
Registration Statement is effective and available for the issuance of the Securities thereunder and
the Company has not received any 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 in writing to do so. The Plan of Distribution section
under the Registration Statement permits the issuance and sale of the Securities as contemplated by
the Purchase Agreement. Upon receipt of the Securities, such purchasers will have good and
marketable title to such Securities and the Common Stock underlying the Securities will be
10
freely tradable on the Trading Market (which, for purposes of this Agreement shall
mean means the following markets or exchanges on which the Common Stock is listed or quoted for
trading on the date in question: the Nasdaq Capital Market, the NYSE Amex, the New York Stock
Exchange, the Nasdaq National Market or the OTC Bulletin Board).
(F) Capitalization. The capitalization of the Company is as set forth in the Base
Prospectus and Prospectus Supplement. The Company has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Companys stock option plans, the issuance of shares of Common
Stock to employees pursuant to the Companys employee stock purchase plan and pursuant to the
conversion or exercise of securities exercisable, exchangeable or convertible into Common Stock
(Common Stock Equivalents). No Person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except (i) as a result of the purchase and sale of the Securities, (ii)
pursuant to the Companys stock option plans, (iii) pursuant to agreements or instruments
(including that certain Rights Agreement, dated July 27, 2005, as amended (the Rights
Agreement)) filed as exhibits to SEC Reports incorporated by reference into the Prospectus
Supplement, there are no outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire, any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to issue additional
shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will
not obligate the Company to issue shares of Common Stock or other securities to any Person (other
than the purchasers a party to the Purchase Agreement) and will not result in a right of any holder
of Company securities to adjust the exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of the Company are validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. Except for the Required Approvals, no further
approval or authorization of any stockholder, the Board of Directors of the Company or others is
required for the issuance and sale of the Securities. Other than the Rights Agreement, there are
no stockholders agreements, voting agreements or other similar agreements with respect to the
Companys capital stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Companys stockholders.
(G) SEC Reports; Financial Statements. The Company has complied in all material
respects with requirements to file all reports, schedules, forms, statements and other documents
required to be filed by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period
as the Company was required by law to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being collectively referred to
herein as the SEC Reports) on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing or as amended
or corrected in a subsequent SEC Report. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (GAAP), except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial
position of the Company and its
11
consolidated subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(H) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date
of the latest audited financial statements included within the SEC Reports, except as specifically
disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event,
occurrence or development that has had or that could reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected in the Companys financial
statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii)
the Company has not altered its method of accounting, (iv) except in connection with the Companys
5% Series B Convertible Preferred Stock, 5% Series C Convertible Preferred Stock, 4.25660% Series D
Convertible Preferred Stock, 3.73344597664961% Series E Convertible Preferred Stock and
2.19446320054018% Series F Convertible Preferred Stock, the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or purchased, redeemed or
made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has
not issued any equity securities to any officer, director or Affiliate (defined as any
Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with a Person, as such terms are used in and construed under Rule 144
under the Securities Act), except pursuant to existing Company stock option plans. The Company
does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Securities contemplated by the Purchase Agreement, no event,
liability or development has occurred or exists with respect to the Company or its Subsidiaries or
their respective business, properties, operations or financial condition, that would be required to
be disclosed by the Company under applicable securities laws at the time this representation is
deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this
representation is deemed made.
(I) Litigation. There is no action, suit, inquiry, notice of violation, Proceeding or
investigation pending or, to the knowledge of the Company, threatened against or affecting the
Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or
foreign) (collectively, an Action) which (i) adversely affects or challenges the
legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any
director or officer thereof, is or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim of breach of fiduciary
duty. There has not been, and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the Commission involving the Company or any current or former
director or officer of the Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act. None of the Companys or its Subsidiaries employees
is a member of a union that relates to such employees relationship with the Company, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their employees are good. No
executive officer, to the knowledge of the Company, is, or is now expected to be, in violation of
any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any
restrictive covenant, and the continued employment of each such executive officer does not subject
the Company or any of its Subsidiaries to any liability with respect to any of the foregoing
matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and
conditions of employment and wages and hours, except where the failure to be in
12
compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(J) Labor Relations. No material labor dispute exists or, to the knowledge of the
Company, is imminent with respect to any of the employees of the Company which could reasonably be
expected to result in a Material Adverse Effect.
(K) Compliance. Neither the Company nor any Subsidiary (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with notice or lapse of time
or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body,
or (iii) is or has been in violation of any statute, rule or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to
taxes, environmental protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not reasonably be expected to result in
a Material Adverse Effect.
(L) Regulatory Permits. The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in the SEC Reports, the
Registration Statement, the Base Prospectus and the Prospectus Supplement, except where the failure
to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(Material Permits), and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit. For clarity, the
Company has not received the approval of any regulatory agency to market any of its product
candidates.
(M) Title to Assets. The Company and the Subsidiaries have good and marketable title
in fee simple to all real property owned by them that is material to the business of the Company
and the Subsidiaries and good and marketable title in all personal property owned by them that is
material to the business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except for Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and
the Subsidiaries and Liens for the payment of federal, state or other taxes, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases
of which the Company and the Subsidiaries are in compliance, except where such non-compliance would
not reasonably be expected to have a Material Adverse Effect.
(N) Patents and Trademarks. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications, service marks, trade
names, trade secrets, inventions, copyrights, licenses and other similar intellectual property
rights necessary or material for use in connection with their respective businesses as described in
the SEC Reports, the Registration Statement, the Base Prospectus and the Prospectus Supplement and
which the failure to so have could reasonably be expected to have a Material Adverse Effect
(collectively, the Intellectual Property Rights). Neither the Company nor any Subsidiary
has received, since the date of the latest audited financial statements included within the SEC
Reports, a notice (written or otherwise) that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as would not have a Material Adverse Effect. To the
knowledge of the Company, all such Intellectual Property Rights are enforceable (other than patent
and trademark applications) and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their intellectual properties,
except where failure to do so could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
13
(O) Insurance. The Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary for companies of similar size as the Company in the businesses in which the Company and
the Subsidiaries are engaged, including, but not limited to, directors and officers insurance
coverage. To the knowledge of the Company, such insurance contracts and policies are accurate and
complete. Neither the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a
significant increase in cost.
(P) Transactions With Affiliates and Employees. Except as set forth in the SEC
Reports, the Registration Statement, the Base Prospectus or the Prospectus Supplement, none of the
officers or directors of the Company and, to the knowledge of the Company, none of the employees of
the Company is presently a party to any transaction with the Company or any Subsidiary (other than
for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or
any such employee has a substantial interest or is an officer, director, trustee or partner, in
each case in excess of $120,000, other than (i) for payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) for
other employee benefits, including stock option agreements under any stock option plan of the
Company.
(Q) Sarbanes-Oxley. Except as disclosed in the SEC Reports, the Registration
Statement, the Base Prospectus or the Prospectus Supplement, the Company is in material compliance
with all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the date the
Purchase Agreement is signed and of the Closing Date.
(R) Certain Fees. Except as otherwise provided in this Agreement, no brokerage or
finders fees or commissions are or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the
transactions contemplated by the Transaction Documents. The investors in the Placement shall have
no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the
transactions contemplated by the Transaction Documents.
(S) Trading Market Rules. The issuance and sale of the Securities under the Purchase
Agreement does not contravene the rules and regulations of the Trading Market.
(T) Investment Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an
investment company within the meaning of the Investment Company Act of 1940, as amended. The
Company currently intends to conduct its business in a manner so that it will not become subject to
the Investment Company Act.
(U) Registration Rights. No Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.
(V) Listing and Maintenance Requirements. The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or
which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is
contemplating terminating such registration. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus or the Prospectus Supplement, the Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market on which the
Common Stock is or has been listed or quoted to the
effect that the Company is not in compliance with the listing or maintenance requirements of
such Trading Market.
14
(W) Application of Takeover Protections. Except as set forth in the Registration
Statement, the Base Prospectus or the Prospectus Supplement, the Company and its Board of Directors
have taken all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Companys Certificate of
Incorporation (or similar charter documents) or the laws of its state of incorporation that is or
could become applicable to the purchasers in the Placement as a result such purchasers and the
Company fulfilling their obligations or exercising their rights under the Transaction Documents,
including without limitation as a result of the Companys issuance of the Securities and such
purchasers ownership of the Securities.
(X) Solvency. Based on the financial condition of the Company as of the Closing Date
after giving effect to the receipt by the Company of the proceeds from the sale of the Securities
pursuant to the Purchase Agreement, (i) the Companys fair saleable value of its assets exceeds the
amount that will be required to be paid on or in respect of the Companys existing debts and other
liabilities (including known contingent liabilities) as they mature and (ii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to liquidate all of
its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay
all amounts on or in respect of its debt when such amounts are required to be paid. Within one
year of the Closing Date, the Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in
respect of its debt). The SEC Reports set forth as of the dates thereof all outstanding secured
and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement, Indebtedness shall mean
(a) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than accrued
liabilities and trade accounts payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the Companys balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; and (c) the present value of any lease
payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(Y) Tax Status. Except for matters that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect, the Company and each
Subsidiary has filed all necessary federal, state and foreign income and franchise tax returns and
has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax
deficiency which has been asserted or threatened against the Company or any Subsidiary.
(Z) Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, has (i) directly or indirectly,
used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by
any person acting on its behalf of which the Company is aware) which is in violation of law, or
(iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
(AA) Accountants. The Companys accountants are J.H. Cohn LLP. To the knowledge of
the Company, such accountants, who the Company expects will express their opinion with respect to
the financial statements to be included in the Companys next Annual Report on Form 10-K, which
opinion may include a going concern qualification, are a registered public accounting firm as
required by the Securities Act.
(BB) Regulation M Compliance. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in
the stabilization or
15
manipulation of the price of any security of the Company to facilitate the sale or resale of
any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting
purchases of, any of the Securities or (iii) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company, other than, in the case of
clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement
of the Securities.
(CC) Approvals. The issuance and listing on the NYSE Amex of the Common Stock
underlying the Securities requires no further approvals, including but not limited to, the approval
of shareholders, other than the filling of application(s) to and approval by the NYSE Amex for the
listing of the Common Stock underlying the Securities for trading thereon in the time and manner
required thereby.
(DD) FINRA Affiliations. There are no affiliations with any FINRA member firm
among the Companys officers, directors or, to the knowledge of the Company, any five percent (5%)
or greater stockholder of the Company, except as set forth in the Registration Statement, the Base
Prospectus or the Prospectus Supplement.
SECTION 4. CLOSING. The obligations of the Placement Agent and the purchasers in
the Placement, and the closing of the sale of the Securities pursuant to the Purchase Agreement are
subject to the accuracy, when made and on the Closing Date, of the representations and warranties
on the part of the Company and its Subsidiaries contained herein, to the accuracy of the statements
of the Company and its Subsidiaries made in any certificates pursuant to the provisions hereof, to
the performance by the Company and its Subsidiaries of their obligations hereunder, and to each of
the following additional terms and conditions:
(A) No stop order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been initiated or threatened by the
Commission, and any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Base Prospectus or the Prospectus Supplement or
otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.
(B) The Placement Agent shall not have discovered and disclosed to the Company on or prior to
the Closing Date that the Registration Statement, the Base Prospectus or the Prospectus Supplement
or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Placement Agent, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(C) All corporate proceedings and other legal matters incident to the authorization, form,
execution, delivery and validity of each of the Purchase Agreement, the Securities, the
Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal
matters relating to the Purchase Agreement and the transactions contemplated thereby shall be
reasonably satisfactory in all material respects to counsel for the Placement Agent, and the
Company shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The Placement Agent shall have received from outside counsel to the Company such counsels
written opinion, addressed to the Placement Agent and the purchasers in the Placement dated as of
the Closing Date, in form and substance reasonably satisfactory to the Placement Agent, which
opinion shall include a 10b-5 representation from such counsel.
(E) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the Base Prospectus,
any loss
16
or interference with its business from fire, explosion, flood, terrorist act or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in or contemplated by the Base Prospectus and
(ii) since such date, other than in connection with the conversion or exercise of securities
outstanding as of such date and a reverse stock split, which was effective as of April 23, 2010,
there shall not have been any change in the capital stock or long-term debt of the Company or any
of its Subsidiaries or any change, or any development involving a prospective change, in or
affecting the business, general affairs, management, financial position, stockholders equity,
results of operations or prospects of the Company and its Subsidiaries, otherwise than as set forth
in or contemplated by the Base Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make
it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement.
(F) The Common Stock is registered under the Exchange Act and, as of the Closing Date, the
Common Stock underlying the Securities shall be listed and admitted and authorized for trading on
the NYSE Amex, and, upon request, satisfactory evidence of such actions shall have been provided to
the Placement Agent. The Company shall have taken no action designed to, or likely to have the
effect of terminating the registration of the Common Stock under the Exchange Act or delisting or
suspending from trading the Common Stock from the NYSE Amex, nor has the Company received any
information suggesting that the Commission or the NYSE Amex is contemplating terminating such
registration or listing.
(G) Subsequent to the execution and delivery of the Purchase Agreement, there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock Exchange,
the Nasdaq National Market or the NYSE Amex or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum or maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities in which it is not currently engaged, the subject
of an act of terrorism, there shall have been an escalation in hostilities involving the United
States, or there shall have been a declaration of a national emergency or war by the United States,
or (iv) there shall have occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the effect of any such
event in clause (iii) or (iv) makes it, in the sole judgment of the Placement Agent, impracticable
or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus
Supplement.
(H) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities or materially and adversely affect or potentially
and adversely affect the business or operations of the Company; and no injunction, restraining
order or order of any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale of the Securities
or materially and adversely affect or potentially and adversely affect the business or operations
of the Company.
(I) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K
with respect to the Placement, including as an exhibit thereto this Agreement.
17
(J) The Company shall have entered into a Purchase Agreement with each of the purchasers in
the Placement and such agreements shall be in full force and effect and shall contain
representations and warranties of the Company as agreed between the Company and such purchasers.
(K) FINRA shall have raised no objection to the fairness and reasonableness of the terms and
arrangements of this Agreement. In addition, the Company shall, if requested by the Placement
Agent, make or authorize Placement Agents counsel to make on the Companys behalf, an Issuer
Filing with FINRA pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay
all filing fees required in connection therewith.
(L) Prior to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.
18
Exhibit 99.1
![(ADVENTRX PHARMACEUTICALS LOGO)](https://cdn.kscope.io/011420c401a2803f4c0b96d12e8028db-a58242a5824202.gif)
ADVENTRX PHARMACEUTICALS ANNOUNCES CAPITAL RAISE OF $22.5 MILLION
SAN DIEGO January 7, 2011 ADVENTRX Pharmaceuticals, Inc. (NYSE Amex: ANX)
announced today that it has entered into definitive agreements to sell 8,184,556 units in a
registered direct offering to RA Capital Management, certain healthcare-focused investors, and
other institutional investors for a per unit purchase price of $2.75, representing gross proceeds
to ADVENTRX of approximately $22.5 million. Each unit consists of one share of common stock, a
Series A warrant and a Series B warrant. ADVENTRX plans to use the net proceeds from the
offering to fund activities relating to acquiring and developing additional products or product
candidates, to continue development of its current lead product candidates, and for general
corporate purposes.
The Series A warrants are exercisable for up to an aggregate of 2,046,139 shares of ADVENTRXs
common stock. The Series A warrants will have an exercise price of $2.75 per share and will be
exercisable at any time after the closing of the transaction and before the date that is 5 trading
days after the 1-year anniversary of the initial exercise date. The Series B warrants are
exercisable for up to an aggregate of 2,046,139 shares of ADVENTRXs common stock. The Series B
warrants also will have an exercise price of $2.75 per share and will be exercisable at any time
after the closing of the transaction and before the 5-year anniversary of the initial exercise
date. The closing of the offering is expected to take place on or about January 11, 2011, subject
to the satisfaction of customary closing conditions.
Rodman & Renshaw, LLC, a wholly owned subsidiary of Rodman & Renshaw Capital Group, Inc. (NasdaqGM:
RODM), acted as the exclusive placement agent for the transaction.
The securities described above are being offered by ADVENTRX pursuant to an effective
registration statement(s) on Form S-3 filed with the Securities and Exchange Commission (SEC). A
prospectus supplement relating to the offering will be filed with the SEC.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of the securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or jurisdiction. The securities may only be offered by means of a
prospectus. Copies of the prospectus can be obtained from the SECs website at www.sec.gov or
directly from Rodman & Renshaw, LLC by request to info@rodm.com or (212) 356-0549.
About ADVENTRX Pharmaceuticals
ADVENTRX Pharmaceuticals is a specialty pharmaceutical company whose product candidates are being
developed to improve the performance of existing anti-cancer drugs by addressing limitations
associated principally with their safety and use. More information can be found on the Companys
web site at www.adventrx.com.
Forward Looking Statement
ADVENTRX cautions you that statements included in this press release that are not a description of
historical facts are forward-looking statements that are based on ADVENTRXs current expectations
and assumptions. Such forward-looking statements include, but are not limited to, statements
regarding capital-raising and use of proceeds. Actual events or results may differ materially from
those expressed or implied by the forward-looking statements in this press release due to a number
of risks and uncertainties, including, without limitation: the extent to which ADVENTRX acquires
new technologies, product candidates, products or businesses and its ability to integrate them
successfully into its operations; ADVENTRXs or a future partners ability to obtain regulatory
approval for its current and future product candidates and, if approved, to successfully
commercialize them in the U.S. and/or elsewhere; the potential that ADVENTRX may enter into one or
more commercial partnerships or other strategic transactions relating to ANX-530 and/or ANX-514,
and the terms of any such transactions; the satisfactory performance of third parties on whom
ADVENTRX relies significantly to conduct its nonclinical testing and bioequivalence and clinical
trials and other aspects of its development programs; the
extent to which ADVENTRX rebuilds its workforce and its ability to attract and retain qualified
personnel and manage growth; delays in the commencement or completion of nonclinical testing,
bioequivalence or clinical trials of or manufacturing, regulatory or launch activities related to
ADVENTRXs current or future product candidates; the success of future bioequivalence or clinical
trials; ADVENTRXs ability to acquire or develop sales, marketing and distribution capabilities, if
it determines to commercialize any of its current or future product candidates for which it obtains
regulatory approval without a partner; whether any of ADVENTRXs current or future product
candidates for which it receives regulatory approval, if any, achieve broad market acceptance; and
other risks and uncertainties more fully described in ADVENTRXs press releases and periodic
filings with the Securities and Exchange Commission. ADVENTRXs public filings with the Securities
and Exchange Commission are available at www.sec.gov.
You are cautioned not to place undue reliance on forward-looking statements, which speak only as of
the date when made. ADVENTRX does not intend to revise or update any forward-looking statement set
forth in this press release to reflect events or circumstances arising after the date hereof,
except as may be required by law.
Company Contact:
|
Investor Contact: | |
ADVENTRX Pharmaceuticals
|
Lippert/Heilshorn & Associates, Inc. | |
Ioana C. Hone (ir@adventrx.com)
|
Don Markley (dmarkley@lhai.com) | |
858-552-0866 Ext. 303
|
310-691-7100 |
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