Exhibit 10.1
September 29, 2000
Acqua Wellington North American Equities Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Limited
Montague Sterling Centre
East Bay Street, P.O. Box SS-6238
Nassau, Bahamas
Dear Sirs:
This letter sets forth the agreement between Acqua Wellington North
American Equities Fund, Ltd. (the "Purchaser") and Cytogen Corporation (the
"Company") regarding the purchase by the Purchaser from the Company of the
Company's common stock (the "Common Stock") on the date hereof. The parties
agree as follows:
This Agreement relates to the purchase by the Purchaser of 902,601 shares
(the "Shares") of the Company's Common Stock for an aggregate purchase price of
$6,000,000, which purchase is being settled by the parties on the date hereof.
The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of Delaware. The Company has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue and sell the Shares in accordance with the terms hereof. The execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action. A copy of the duly executed
resolutions of the Board of Directors of the Company is attached hereto as
Exhibit "B". This Agreement has been duly executed and delivered on behalf of
the Company by a duly authorized officer. A copy of a duly executed incumbency
certificate of the Company's duly authorized officers is attached hereto as
Exhibit "C". This Agreement constitutes, or shall constitute when executed and
delivered, a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
The Shares have been duly authorized by all necessary corporate action
and, when paid for or issued in accordance with the terms hereof, the Shares
shall be validly issued and outstanding, fully paid and nonassessable, and the
Purchaser shall be entitled to all rights accorded to a holder of Common Stock.
The Company represents and warrants that (a) the Shares have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a registration statement on Form S-3, Commission File Number
333-33436 (the "Registration Statement"); and (b) the Company has filed a
prospectus supplement to the Registration Statement (the "Prospectus
Supplement") in connection with this transaction. Copies of the Registration
Statement and the Prospectus Supplement, each as filed and, in the case of the
Registration Statement, declared effective by the Securities and Exchange
Commission, are annexed hereto as Exhibits "D" and "E", respectively.
The Company has taken all action necessary on its part to list the Shares
for trading on the Nasdaq system or any relevant market or system, if
applicable. A copy of the Company's listing application with Nasdaq or any other
relevant market or system is attached hereto as Exhibit "F."
The Company will continue to take all action necessary to continue the
listing or trading of its Common Stock on the Nasdaq National Market or any
relevant market or system, if applicable, and will comply in all respects with
the Company's reporting, listing (including, without limitation, the listing of
the Shares) or other obligations under the rules of the Nasdaq National Market
or any relevant market or system.
The Company has delivered or made available to the Purchaser true and
complete copies of the filings on Forms 10-K, 10-Q and 8-K filed by the Company
with the Securities and Exchange Commission since March 28, 2000 (collectively,
the "Commission Filings"). The Company has not provided to the Purchaser any
information which, according to applicable law, rule or regulation, should have
been disclosed publicly by the Company but
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which has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of their respective dates, each of the
Commission Filings complied in all material respects with the requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission promulgated thereunder and other federal, state
and local laws, rules and regulations applicable to such documents, and, as of
their respective dates, none of the Commission Filings referred to above
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the Commission
Filings comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. No event or circumstance
has occurred or exists with respect to the Company or its subsidiaries or their
respective businesses, properties, prospects, operations or financial condition,
which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
The Company will promptly notify the Purchaser of (a) any stop order or
other suspension of the effectiveness of the Registration Statement and (b) the
happening of any event as a result of which the prospectus included in the
Registration Statement includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The Company may issue a press release or otherwise make a public statement
or announcement with respect to the completion of the transaction contemplated
hereby; without the prior consent of the Purchaser.
The Company and the Purchaser will indemnify each other as provided in
Exhibit "A" attached hereto against liability with respect to the Registration
Statement (including, without limitation, the Prospectus Supplement) relating to
the Shares which was sold by the Company to the Purchaser. For purposes of said
Exhibit A, capitalized terms used therein without definition shall have the same
meanings therein as are ascribed to said terms in this agreement.
This Agreement and the legal relations between the parties hereto with
respect to any purchase of Common Stock by the Purchaser hereunder shall be
governed and construed in accordance with the substantive laws of the State of
New York without giving effect to the conflicts of law principles thereunder.
Delivery of an executed copy of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the original.
Please execute a copy of this letter which, when executed by the
Purchaser, will constitute an agreement between the Company and the Purchaser.
Very truly yours,
CYTOGEN CORPORATION
By: /s/ H. Joseph Reiser
-------------------------
Name: H. Joseph Reiser
Title: President and Chief
Executive Officer
AGREED TO:
PURCHASER:
ACQUA WELLINGTON NORTH
AMERICAN EQUITIES FUND, LTD.
By: /s/ Anthony L. M. Inder Rieden
----------------------------------
Name: Anthony L. M. Inder Rieden
Title: Director
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EXHIBIT 'A'
TERMS OF INDEMNIFICATION
(1) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless the Purchaser and each person, if any, who controls the Purchaser
within the meaning of Section 15 of the Securities Act of 1933, as amended
(the "Securities Act"); or Section 20(a) of the Securities Exchange Act,
as amended (the "Exchange Act"); from and against any losses, claims,
damages, liabilities, costs and expenses (including, without limitation,
reasonable costs of defense and investigation and all attorneys' fees and
expenses) to which the Purchaser and each person, if any, who controls the
Purchaser may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arise out of; or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained, or
incorporated by reference, in the Registration Statement relating to
Shares being sold to the Purchaser (including the prospectus dated June
14, 2000, and the prospectus supplement dated September 29, 2000 (the
"Prospectus Supplement") which are a part of the Registration Statement),
or any amendment or supplement to the Registration Statement, or (ii) the
omission or alleged omission to state in that Registration Statement or
any document incorporated by reference in the Registration Statement, a
material fact required to be stated therein or necessary to make the
statements therein not misleading (an "Indemnifiable Matter").
The Company will reimburse the Purchaser and each such controlling person
promptly upon demand for any legal or other costs or expenses reasonably
incurred by the Purchaser or the controlling person in investigating,
defending against, or preparing to defend against any claim relating to an
Indemnifiable Matter, except that the Company will not be liable to the
extent such claim, suit or proceeding which results in a loss, claim,
damage, liability or expense arises out of, or is based upon, an untrue
statement, alleged untrue statement, omission or alleged omission,
included in any Prospectus Supplement or any amendment or supplement to
the Prospectus Supplement in reliance upon, and in conformity with,
written information furnished by the Purchaser to the Company for
inclusion in the Prospectus Supplement.
(2) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of a
claim or the commencement of an action, suit or proceeding for which the
person intends to seek indemnification under Paragraph (a) or (b), the
person will notify the indemnifying party in writing of the claim or
commencement of the action, suit or proceeding, but failure to notify the
indemnifying party will not relieve the indemnifying party from liability
under Paragraph (a) or (b), except to the extent the indemnifying party
has been materially prejudiced by the failure to give notice. The
indemnifying party will be entitled to participate in the defense of any
claim, action, suit or proceeding as to which indemnification is being
sought, and if the indemnifying party acknowledges in writing the
obligation to indemnify the party against whom the claim, action, suit or
proceeding is brought, the indemnifying party may (but will not be
required to) assume the defense against the claim, action, suit or
proceeding with legal counsel chosen by the indemnifying party. After an
indemnifying party notifies an indemnified party that the indemnifying
party wishes to assume the defense of a claim, action, suit or proceeding
the indemnifying party will not be liable for any legal or other expenses
incurred by the indemnified party in connection with the defense against
the claim, action, suit or proceeding, except that if, in the opinion of
legal counsel to the indemnifying party, one or more of the indemnified
parties should be separately represented in connection with a claim,
action, suit or proceeding the indemnifying party will pay the fees and
expenses of one separate counsel for the indemnified parties. Each
indemnified party, as a condition precedent to receiving indemnification
as provided in Paragraph (a) or (b), will, at the cost and expense of the
indemnifying party, cooperate in all reasonable respects with the
indemnifying party in the defense of the claim, action, suit or proceeding
as to which indemnification is sought. No indemnifying party will be
liable for any settlement of any claim, action, suit or proceeding
effected without its prior written consent. No indemnifying party will,
without the prior written consent of the indemnified party, effect any
settlement of a pending or threatened claim, action or proceeding with
respect which an indemnified party is, or is informed that it may be, made
a party and for which it would be entitled to indemnification, unless the
settlement includes an unconditional release of the indemnified party from
all liability and claims which are the subject matter of the pending or
threatened action.
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(3) CONTRIBUTION. If for any reason the indemnification provided for in this
agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost
or expense referred to in Paragraph (a) or (b), each indemnifying party
will, in lieu of indemnifying the indemnified party, contribute to the
amount paid or payable by the indemnified party as a result of the loss,
claim, damage, liability, cost or expense (i) in the proportion which is
appropriate to reflect the relative benefits received by the indemnifying
party, on the one hand, and by the indemnified party, on the other hand,
from the sale of stock which is the subject of the claim, action, suit or
proceeding which resulted in the loss, claim, liability, cost or expense
or (ii) if that allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits of
the sale of stock, but also the relative fault of the indemnifying party
and the indemnified party with respect to the statements or omissions
which are the subject of the claim, action, suit or proceeding that
resulted in the loss, claim, damage, liability, cost or expense as well as
any other relevant equitable considerations.
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