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EXHIBIT 10.1
PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT ("Agreement") is made as of the 1st day of
June, 2000 by and between Boston Life Sciences Inc. a Delaware corporation
(the "Company"), and the Investor set forth on the signature page affixed hereto
(the "Investor").
RECITALS
A. The Company and the Investor are executing and delivering this
Agreement in connection with an offering of an aggregate of 1,405,956 shares of
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Common Stock, $.01 par value per share (the "Common Stock") at an aggregate
purchase price of $10,000,000 and certain Class C Warrants (as hereafter
defined) to purchase an aggregate of 300,000 shares of Common Stock and certain
Class D Warrants to purchase an aggregate of 200,000 shares of Common Stock, all
in reliance upon the exemption from securities registration afforded by the
provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended;
B. The Investor wishes to purchase, and the Company wishes to sell
and issue to the Investor, upon the terms and conditions stated in this
Agreement, such number of shares of the common stock of the Company at a price
of $7.113 per share (the "Purchase Price"); and that number of Class
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C warrants to purchase Common Stock at an exercise price equal to $8.00 per
share and that number of Class D Warrants (the "Class D Warrants") to purchase
Common Stock at an exercise price of $10.00 per share upon such other terms and
subject to the limitations and conditions set forth in the forms attached hereto
as Exhibit A and Exhibit B (the Class C Warrants and the Class D Warrants being
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hereafter referred to collectively as the "Warrants") as is set forth on the
signature page attached hereto and executed by the Investor; and
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement,
in the form attached hereto as EXHIBIT C (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder, and applicable state securities laws;
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
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in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings here set forth:
1.1 "Affiliate" means, with respect to any person, any other person
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which directly or indirectly controls, is controlled by, or is under common
control with, such person.
1.2 "Agreements" means this Agreement, the Registration Rights
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Agreement, and the Warrants.
1.3 "Closing" means the consummation of the transactions contemplated
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by this Agreement, and "Closing Date" means the date of such Closing.
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1.4 "Control" means the possession , direct or indirect, of the
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power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
1.5 "Material Adverse Effect" means a material adverse effect on the
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(i) condition (financial or otherwise), business, assets, or results of
operations of the Company and its subsidiaries, taken as a whole; (ii) ability
of the Company to perform any of its material obligations under the terms of
this Agreement; or (iii) rights and remedies of the Investor under the terms of
this Agreement.
1.6 "Person" means an individual, corporation, partnership, trust,
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business trust, association, joint stock company, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
1.7 "SEC Filings" has the meaning set forth in Section 4.6.
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1.8 "Securities" means the Shares, the Warrants and the Warrant
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Shares (defined below).
1.9 "Shares" means the shares of Common Stock being purchased by the
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Investor hereunder.
1.10 "Warrant Shares" means the shares of Common Stock issuable upon
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exercise of or otherwise pursuant to the Warrants.
1.11 "1933 Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder.
1.12 "1934 Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares and Warrants. Subject to the terms and
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conditions of this Agreement, the Investor hereby agrees to purchase and the
Company hereby agrees to sell and issue to the Investor, the Warrants and that
number of Shares determined by dividing the aggregate purchase price of Ten
Million Dollars ($10,000,000), by the per share Purchase Price for the Shares,
which shall equal the "Market Price" defined as the average closing price of the
Company's Common Stock (as reported by Nasdaq) for the ten (10) trading days
ending May 26, 2000, subject to a maximum of $8.00 and a minimum of $7.00.
3. The Company shall promptly deliver to Investor's counsel, in trust, a
certificate or certificates, registered in such name or names as Investor may
designate, representing all of the Shares and all of the Warrants, with
instructions that such certificates are to be held for release to the Investor
only upon payment of the purchase price to the Company. Upon receipt by counsel
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to the Investor of the certificates, the Investor shall promptly cause a wire
transfer in same day funds to be sent to the account of the Company as
instructed in writing by the Company, in an amount representing the entire
purchase price. On the date the Company receives such funds, the certificates
evidencing the Shares and the Warrants shall be released to the Investor (and
such date shall be deemed the "Closing Date").
4. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Investor that:
4.1 Organization, Good Standing and Qualification. The Company and
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each of its subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its organization and has all requisite
power and authority to carry on its business and own its properties as now
conducted and owned. The Company and each of its subsidiaries is duly qualified
or licensed to do business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification or licensing necessary unless the
failure to so qualify or be licensed would not have a Material Adverse Effect.
4.2 Authorization. The Company has full power and authority and has
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taken all requisite action on the part of the Company, its officers, directors
and stockholders necessary for (i) the authorization, execution and delivery of
the Agreements, (ii) the performance of all obligations of the Company hereunder
or thereunder, and (iii) the authorization, issuance (or reservation for
issuance) and delivery of the Securities. The Agreements constitute the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability,
relating to or affecting creditors' rights generally.
4.3 Capitalization. Set forth on Schedule 4.3 hereto is (a) the
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authorized capital of the Company on the date hereof; (b) the number of shares
of capital stock issued and outstanding; (c) the number of shares of capital
stock issuable pursuant to the Company's stock plans; (d) the number of shares
of capital stock issuable and reserved for issuance pursuant to securities
(other than the Shares and the Warrants) exercisable for, or convertible into or
exchangeable for any shares of capital stock. To the best of the Company's
knowledge, all of the issued and outstanding shares of the Company's capital
stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, except to the extent that the
failure of the foregoing to be true and correct would not have a Material
Adverse Effect. Except as contemplated by this Agreement, the Company and its
subsidiaries do not have any present plan or intention to issue any equity
securities of any kind, or to transfer any equity securities of any kind owned
by them.
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4.4 Valid Issuance. The Company has reserved a sufficient number of
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shares of Common Stock for issuance pursuant to this Agreement and upon exercise
of the Warrants. The Company will take such steps as may be necessary to reserve
sufficient shares for issuance pursuant to Section 7 below when such issuance is
determinable. The Shares and Warrants are duly authorized, and such securities,
along with the Warrant Shares when issued in accordance herewith and with the
terms of the Warrants, will be duly authorized, validly issued, fully paid, non-
assessable and free and clear of all encumbrances and restrictions, except for
restrictions on transfer imposed by applicable securities laws.
4.5 Consents. The execution, delivery and performance by the
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Company of the Agreements and the offer, issue and sale of the Securities
require no consent of, action by or in respect of, or filing with, any Person,
governmental body, agency, or official, other than any such consents which have
been obtained, or other than filings that have been made pursuant to applicable
state securities laws and post-sale filings pursuant to applicable state and
federal securities laws and the requirements of the Nasdaq Stock Market, which
the Company undertakes to file within the applicable time periods.
4.6 Delivery of SEC Filings; Business. The Investor has reviewed the
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Company's most recent Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, and all other reports filed by the Company pursuant to the
1934 Act since the filing of the Annual Report on Form 10-K (collectively, the
"SEC Filings"). The Company and its subsidiaries are engaged only in the
business described in the SEC Filings and the SEC Filings contain a complete and
accurate description, in all material respects, of the business of the Company
and its subsidiaries.
4.7 Use of Proceeds. The proceeds of the sale of the Securities
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hereunder shall be used by the Company for working capital for general corporate
purposes.
4.8 No Material Adverse Change. Since the filing of the Company's
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most recent Annual Report on Form 10-K or as otherwise identified and described
in subsequent reports filed by the Company pursuant to the 1934 Act, there has
not been:
(i) any change in the consolidated assets, liabilities,
financial condition or operating results of the Company from that reflected in
the financial statements included in the Company's most recent Quarterly Report
on Form 10-Q, except changes in the ordinary course of business which have not
had, in the aggregate, a Material Adverse Effect;
(ii) any declaration or payment of any dividend, or any
authorization or payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the Company;
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(iii) any material damage, destruction or loss, whether or not
covered by insurance to any assets or properties of the Company or any of its
subsidiaries;
(iv) any waiver by the Company or any of its subsidiaries of a
valuable right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or any of its
subsidiaries, except in the ordinary course of business and which is not
material to the assets, properties, financial condition, operating results or
business of the Company and its subsidiaries taken as a whole (as such business
is presently conducted and as it is proposed to be conducted);
(vi) any material change or amendment to a material contract or
arrangement by which the Company or any of their subsidiaries or any of its
assets or properties is bound or subject;
(vii) any labor difficulties or labor union organizing
activities with respect to employees of the Company or any of its subsidiaries;
(viii) any transaction entered into by the Company or any of its
subsidiaries other than in the ordinary course of business; or
(ix) any other event or condition of any character that might
have a Material Adverse Effect.
4.9 SEC Filings; Material Contracts.
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(a) As of its filing date, each report filed by the Company with
the SEC pursuant to the 1934 Act, complied as to form in all material respects
with the requirements of the 1934 Act and did not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading.
(b) Each registration statement and any amendment thereto filed
by the Company pursuant to the 1933 Act and the rules and regulations
thereunder, as of the date such statement or amendment became effective,
complied as to form in all material respects with the 1933 Act and did 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 each prospectus filed pursuant to Rule 424(b) under the 1933
Act, as of its issue date and as of the closing of any sale of securities
pursuant thereto did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading.
(c) Except as set forth on Schedule 4.3 hereto, there are no
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agreements or instruments currently in force and effect that constitute a
warrant, option, convertible security or other right, agreement or arrangement
of any character under which the Company is or may be
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obligated to issue any material amounts of any equity security of any kind, or
to transfer any material amounts of any equity security of any kind.
4.10 Registration Rights. The Company is currently eligible to
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register the resale of its Common Stock on a registration statement on Form S-3
under the 1933 Act.
4.11 No Conflict, Breach, Violation or Default. The execution,
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delivery and performance of the Agreements and the issuance and sale of the
Securities will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under (i) the Company's
Amended and Restated Certificate of Incorporation dated March 29, 1996, as
amended on June 29, 1999 ("Articles") or Amended and Restated Bylaws as in
effect on the date hereof, or (ii) except where it would not have a Material
Adverse Effect, any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject. With respect to the
matters set forth in subsection (ii) of this Section 4.11, the Company has made
diligent inquiry and is aware of no conflict with or breach or violation of any
such rule, regulation or order or any agreement or instrument by reason of the
execution, delivery or performance of the Agreements and the issuance and sale
of the Securities.
4.12 Tax Matters. The Company and its subsidiaries have correctly
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and timely prepared and filed all tax returns required to have been filed by it
with all appropriate governmental agencies and timely paid all taxes owed by
them. The charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of taxes for all fiscal periods are adequate in all
material respects, and there are no material unpaid assessments of the Company
or any subsidiary nor, to the knowledge of the Company, any basis for the
assessment of any additional taxes, penalties or interest for any fiscal period
or audits by any federal, state or local taxing authority except such as which
are not material. All material taxes and other assessments and levies that the
Company or any subsidiary is required to withhold or to collect for payment have
been duly withheld and collected and paid to the proper governmental entity or
third party. There are no tax liens or claims pending or threatened against the
Company or any subsidiary or any of their respective assets or property. There
are no outstanding tax sharing agreements or other such arrangements between the
Company or any subsidiary and any other corporation or entity.
4.13 Title to Properties. Except as disclosed in the SEC Filings,
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the Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or currently planned to be
made thereof by them; and except as disclosed in the SEC Filings, the Company
and its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or currently planned to be made thereof by them.
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4.14 Certificates, Authorities and Permits. The Company and its
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subsidiaries possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
4.15 No Labor Disputes. No labor dispute with the employees of the
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Company or any subsidiary exists or, to the knowledge of the Company, is
imminent.
4.16 Intellectual Property. Except for sponsored research and
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license agreements between the Company and Harvard Medical School and its
affiliated institutions (the "Sponsored Agreements"), the Company and its
subsidiaries own or possess adequate trademarks and trade names and have all
other rights to inventions, know-how, patents, copyrights, trademarks, trade
names, confidential information and other intellectual property (collectively,
"Intellectual Property Rights"), free and clear of all liens, security
interests, charges, encumbrances, equities and other adverse claims, necessary
to conduct the business now operated by them, or presently employed by them, and
presently contemplated to be operated by them, and have not received any notice
of infringement of or conflict with asserted rights of others with respect to
any Intellectual Property Rights. Schedule 4.16 sets forth a list by serial
number and title of the six patents and/or patent applications most material to
the Company's business, owned or possessed by the Company or any of its
subsidiaries. Except for the Sponsored Agreements, no proprietary technology of
any Person was used in the design or development by the Company of (or otherwise
with respect to) any of the Intellectual Property Rights, which technology was
not properly acquired by the Company from such Person.
4.17 Environmental Matters. Neither the Company nor any of its
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subsidiaries is in violation of any statute, rule, regulation, decision or order
of any governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, "Environmental Laws"), owns or operates any
real property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or contamination
pursuant to any Environmental Laws, or is subject to any claim relating to any
Environmental Laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the Company
is not aware of any pending investigation that might lead to such a claim.
4.18 Litigation. Except as disclosed in the SEC Filings, there are
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no pending actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the sale of the
Securities; and to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
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4.19 Financial Statements. The financial statements included in
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each SEC Filing present fairly and accurately the consolidated financial
position of the Company and its subsidiaries as of the dates shown and their
consolidated results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. Except as set
forth in the financial statements of the Company included in the SEC Filings
filed prior to the date hereof, the Company has no liabilities, contingent or
otherwise, except those which individually or in the aggregate are not material
to the financial condition or operating results of the Company.
4.20 Insurance Coverage. The Company and its subsidiaries maintain
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in full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted, and properties owned or
leased, by the Company and its subsidiaries, and the Company reasonably believes
such insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
4.21 Compliance with Nasdaq Continued Listing Requirements. The
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Company is in compliance with all applicable Nasdaq National Market System
("NMS") continued listing requirements. There are no proceedings pending or to
the Company's knowledge threatened against the Company relating to the continued
listing of the Company's Common Stock on the NMS, and the Company has not
received any notice of, nor to the knowledge of the Company is there any basis
for, the delisting of the Common Stock from the NMS.
4.22 Acknowledgement of Dilution. The number of shares of Common
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Stock issuable pursuant to this Agreement may increase substantially. The
Company's executive officers and directors have studied and fully understand the
nature of the Securities being sold hereunder and recognize that they have a
potential dilutive effect. The board of directors of the Company has concluded
in its good faith business judgment that such issuance is in the best interests
of the Company. The Company acknowledges that its obligations to issue shares of
Common Stock and Warrants pursuant to this Agreement are binding upon it and
enforceable regardless of the dilution that such issuance may have on the
ownership interest of the other stockholders of the Company.
4.23 Brokers and Finders. The Investor shall have no liability or
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responsibility for a finder's fee.
4.24 No Directed Selling Efforts or General Solicitation. Neither
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the Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the Securities.
4.25 No Integrated Offering. Neither the Company nor any of its
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Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, within the six-month period prior to the closing made any offers or
sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of the Securities under the 1933
Act, except for shelf registration statements currently in effect.
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4.26 Disclosures. No representation or warranty made under any
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Section hereof and no information furnished by the Company pursuant hereto, or
in any other document, certificate or statement furnished by the Company to the
Investor or any authorized representative of the Investor, pursuant to the
Agreements or in connection therewith, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the respective
statements contained herein or therein, in light of the circumstances under
which the statements were made, not misleading.
5. Representations and Warranties of the Investor. The Investor hereby
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represents and warrants to the Company that:
5.1 Organization and Existence. The Investor is an undertaking for
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collective investment set up as an Investment Fund validly existing under
Luxembourg Law of March 30, 1988, and has all requisite power and authority to
invest in the Securities pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by the
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Investor of the Agreements have been duly authorized and the Agreements will
each constitute the valid and legally binding obligation of the Investor,
enforceable against the Investor in accordance with their terms.
5.3 Purchase Entirely for Own Account. The Securities to be
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received by the Investor hereunder will be acquired for investment for the
Investor's own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof, and the Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. The Investor is not a registered broker dealer or an entity engaged in
the business of being a broker dealer.
5.4 Investment Experience. The Investor acknowledges that it can
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bear the economic risk and complete loss of its investment in the Securities and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of Information. The Investor has had an opportunity
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to receive any documents related to the Company and to ask questions of and
receive answers from the Company regarding the Company, its business and the
terms and conditions of the offering of the Securities. Neither such inquiries
nor any other due diligence investigation conducted by the Investor shall
modify, amend or affect the Investor's right to rely on the Company's
representations and warranties contained in this Agreement or made pursuant to
this Agreement.
5.6 Restricted Securities. The Investor understands that the
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Securities are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances.
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5.7 Legends. It is understood that, until registration for resale
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pursuant to the Registration Rights Agreement, certificates evidencing the
Securities may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be offered, sold,
pledged, hypothecated, assigned or transferred except (i) pursuant to a
registration statement under the Act which has become effective and is current
with respect to these securities, or (ii) pursuant to a specific exemption from
registration under the Act but only upon a holder hereof first having obtained
the written opinion of counsel to the Corporation, or other counsel reasonably
acceptable to the Corporation, that the proposed disposition is consistent with
all applicable provisions of the Act as well as any applicable "blue sky" or
similar securities laws."
(b) If required by the authorities of any state in connection
with the issuance of sale of the Securities, the legend required by such state
authority.
5.8 Accredited Investor. The Investor is an accredited investor as
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defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act.
5.9 No General Solicitation. The Investor did not learn of the
-----------------------
investment in the Securities as a result of any public advertising or general
solicitation.
6. Registration Rights Agreement. The parties acknowledge and agree that
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part of the inducement for the Investor to enter into this Agreement is the
Company's execution and delivery of the Registration Rights Agreement. The
parties acknowledge and agree that simultaneously with the execution hereof, the
Registration Rights Agreement is being duly executed and delivered by the
parties thereto.
7. Covenants and Agreements of the Company.
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7.1 Opinion of Counsel. On or prior to the Closing Date, the Company
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will deliver to the Investor the opinion of legal counsel to the Company, in
form and substance reasonably acceptable to the Investor.
7.2 Reservation of Common Stock Pursuant to Exercise of Warrants.
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The Company hereby agrees to reserve and keep available out of its authorized
but unissued shares of Common Stock such amount required pursuant to the
exercise of the Warrants.
7.3 Reports. The Company will file and make available to the
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Investor, as requested, the following reports:
(a) Quarterly Reports. As soon as available and in any event
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within 45 days after the end of each fiscal quarter of the Company, the
Company's quarterly report on Form 10-Q or, in the absence of such report,
consolidated balance sheets of the Company and its subsidiaries as at the end of
such period and the related consolidated statements of operations, stockholders'
equity and cash flows for such period and for the portion of the Company's
fiscal year ended on the last day of such quarter, all in reasonable detail and
certified by a principal financial officer of the Company to have been prepared
in accordance with generally accepted accounting principles, subject to year-end
and audit adjustments.
(b) Annual Reports. As soon as available and in any event within
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90 days after the end of each fiscal year of the Company, the Company's Form 10-
K or, in the absence of a Form 10-K, consolidated balance sheets of the Company
and its subsidiaries as at the end of such year and the related consolidated
statements of earnings, stockholders' equity and cash flows for such year, all
in reasonable detail and accompanied by the report on such
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consolidated financial statements of an independent certified public accountant
selected by the Company and reasonably satisfactory to the Investor.
(c) Securities Filings. As promptly as practicable and in any
------------------
event within five days after the same are issued or filed, copies of (i) all
notices, proxy statements, financial statements, reports and documents as the
Company or any subsidiary shall send or make available generally to its
stockholders or to financial analysts, and (ii) all periodic and special
reports, documents and registration statements (other than on Form S-8) which
the Company or any subsidiary furnishes or files, or any officer or director of
the Company or any of its subsidiaries (in such person's capacity as such)
furnishes or files with the SEC.
(d) Other Information. Such other information relating to the
-----------------
Company or its subsidiaries as from time to time may reasonably be requested by
the Investor provided the Company produces such information in its ordinary
course of business, and further provided that the Company, solely in its own
discretion, determines that such information is not confidential in nature and
disclosure to the Investor would not be harmful to the Company.
7.4 Press Releases. Any press release or other publicity concerning
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this Agreement or the transactions contemplated by this Agreement shall be
submitted to the Investor for comment at least two (2) business days prior to
issuance, unless the release is required to be issued within a shorter period of
time by law or pursuant to the rules of a national securities exchange. Any
press release issued by the Company, subsequent to the closing date, will be
submitted to the Investor for comment at least one (1) business day prior to
issuance, unless the release is required to be issued within a shorter period of
time by law or pursuant to the rules of a national securities exchange. The
Investor will receive press releases for comment until such time as the Investor
holds less than 50% of its original shares of Common Stock.
7.5 No Conflicting Agreements. The Company will not, and will not
-------------------------
permit its subsidiaries to, take any action, enter into any agreement or make
any commitment that would conflict or interfere in any material respect with the
obligations to the Investor under the Agreements.
7.6 Insurance. The Company shall, and shall cause each subsidiary to,
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have in full force and effect (a) insurance reasonably believed to be adequate
on all assets and activities of a type customarily insured, covering property
damage and loss of income by fire or other casualty, and (b) insurance
reasonably believed to be adequate protection against all liabilities, claims
and risks against which it is customary for companies similarly situated as the
Company and the subsidiaries to insure.
7.7 Compliance with Laws. The Company will use reasonable efforts,
--------------------
and will cause each of its subsidiaries to use reasonable efforts, to comply
with all applicable laws, rules, regulations, orders and decrees of all
governmental authorities, except to the extent non-compliance (in one instance
or in the aggregate) would not have a Material Adverse Effect.
7.8 Listing of Underlying Shares and Related Matters. The Company
------------------------------------------------
hereby agrees, promptly following the Closing of the transactions contemplated
by this Agreement, to take such action to cause the Shares and the Warrant
Shares to be listed on the Nasdaq National Market as promptly as possible but
no later than the effective date of the registration contemplated by the
Registration Rights Agreement. The Company further agrees that if the Company
applies to have its Common Stock or other securities traded on any other
principal
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stock exchange or market, it will include in such application the Common Stock
underlying the Warrants, and will take such other action as is necessary to
cause such Common Stock to be so listed. The Company will take all action
necessary to continue the listing and trading of its Common Stock on the Nasdaq
National Market and will comply in all respects with the Company's reporting,
filing and other obligations under the bylaws or rules of such exchange, as
applicable, to ensure the continued eligibility for trading of the Shares and
the Warrant Shares thereon. So long as the Investor beneficially owns any of the
Shares, the Company shall provide promptly to the Investor copies of any notice
it receives regarding the continued eligibility of the Common Stock for trading
on any securities exchange (including the Nasdaq) on which the securities of the
same class or series issued by the Company are then listed or quoted, if any.
8. Survival. All representations, warranties, covenants and agreements
--------
contained in this Agreement shall be deemed to be representations, warranties,
covenants and agreements as of the date hereof and shall survive the execution
and delivery of this Agreement for a period of three years from the date of this
Agreement; provided, however, that the provisions contained in Section 7 hereof
shall survive in accordance therewith.
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9. Arbitration.
-----------
9.1 Scope. Resolution of any and all disputes arising from or in
-----
connection with the Agreements, whether based on contract, tort, common law,
equity, statute, regulation, order or otherwise ("Disputes"), including disputes
arising in connection with claims by third persons, shall be exclusively
governed by and settled in accordance with the provisions of this Section 9;
provided, that the foregoing shall not preclude equitable or other judicial
relief to enforce the provisions hereof or to preserve the status quo pending
resolution of Disputes hereunder.
9.2. Binding Arbitration. The parties hereby agree to submit all
-------------------
Disputes to arbitration for final and binding resolution. Either party may
initiate such arbitration by delivery of a demand therefor (the "Arbitration
Demand") to the other party. The arbitration shall be conducted in New York, New
York by a sole arbitrator selected by agreement of the parties not later than 10
days after delivery of the Arbitration Demand, or, failing such agreement,
appointed pursuant to the Commercial Arbitration Rules of the America
Arbitration Association, as amended from time to time (the "AAA Rules"). If the
arbitrator becomes unable to serve, his successor(s) shall be similarly selected
or appointed.
9.3. Procedure. The arbitration shall be conducted pursuant to the
---------
Federal Arbitration Act and such procedures as the parties may agree or, in the
absence of or failing such agreement, pursuant to the AAA Rules. Notwithstanding
the foregoing, (a) each party shall have the right to audit the books and
records of the other party that are reasonably related to the Dispute; (b) each
party shall provide to the other, reasonably in advance of any hearing, copies
of all documents that a party intends to present in such hearing; (c) all
hearings shall be conducted on an expedited schedule; and (d) all proceedings
shall be confidential, except that either party may at its expense make a
stenographic record thereof.
9.4. Timing. The arbitrator shall complete all hearings not later than
------
90 days after his or her selection or appointment, and shall make a final award
not later than 30 days thereafter. The arbitrator shall apportion all costs and
expenses of the arbitration, including the arbitrator's fees and expenses, and
fees and expenses of experts ("Arbitration Costs") between the prevailing and
non-prevailing party as the arbitrator shall deem fair and reasonable. In
circumstances where a Dispute has been asserted or defended against on grounds
that the arbitrator deems manifestly unreasonable, the arbitrator may assess all
Arbitration Costs against the non-prevailing party and may include in the award
the prevailing party's attorney's fees and expenses in connection with any and
all proceedings under this Section 9. Notwithstanding the foregoing, in no event
may the arbitrator award multiple or punitive damages.
10. Miscellaneous.
-------------
10.1 Successors and Assigns. This Agreement may not be assigned by a
----------------------
party hereto without the prior written consent of the other party hereto, except
that without the prior written consent of the Company, but after notice duly
given, an Investor may assign its rights and delegate its duties hereunder to an
Affiliate, and without the prior written consent of the Investor, but after
notice duly given and in compliance with this Agreement, the Company may assign
its
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<PAGE>
rights and delegate its duties hereunder to any successor-in-interest
corporation in the event of a merger or consolidation of the Company with or
into another corporation, or any merger or consolidation of another corporation
with or into the Company that results directly or indirectly in an aggregate
change in the ownership or control of more than 50% of the voting rights of the
equity securities of the Company, or the sale of all or substantially all of the
Company's assets. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
10.2 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.3 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.4 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given only upon delivery to each party to be notified by (i)
personal delivery, (ii) telex or telecopier, upon receipt of the correct answer
back, or (iii) an internationally recognized overnight air courier, addressed to
the party to be notified at the address as follows, or at such other address as
such party may designate by ten days' advance written notice to the other party:
If to the Company:
Boston Life Sciences, Inc.
137 Newbury St., 8th Floor
Boston, MA 02116
Attn: Joseph P. Hernon
with a copy to:
Ropes & Gray
One International Place
39th Floor
Boston, MA 02110
Attn: Steve Wilcox
If to the Investor:
Pictet Global Sector Fund-Biotech
c/o Pictet & Cie
Bd Georges-Favon 29
CH-1204 Geneva
Switzerland
Attn: Dr. Vincent Ossipow
with a copy to:
Mr. Yves Martignier
c/o Pictet & Cie
Bd Georges-Favon 29
CH-1204 Geneva
Switzerland
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<PAGE>
10.5 Fees and Expenses. The parties hereto shall pay their own costs
-----------------
and expenses in connection herewith.
10.6 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any Securities purchased under this Agreement at the
time outstanding, each future holder of all such securities, and the Company.
10.7 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
10.8 Entire Agreement. This Agreement, including the Exhibits and
----------------
Schedules hereto, and the Registration Rights Agreement constitute the entire
agreement among the parties hereof with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
10.9 Further Assurances. The parties shall execute and deliver all
------------------
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
10.10 Applicable Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the Commonwealth of Massachusetts
without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date indicated above.
The Company:
BOSTON LIFE SCIENCES , INC.
By: /s/ Marc Lanser
-------------------------
Name: Marc Lanser
Title: Executive VP & Chief Scientific Officer
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The Investor: PICTET GLOBAL SECTOR FUND-BIOTECH
By: /s/ Jean Pilloud
------------------------
Name: Mr. Jean Pilloud
Title: Director
By: /s/ Yves Martignier
-------------------------
Name: Mr. Yves Martignier
Title: Director
Number of Shares of Common Stock: 1,405,956
Effective per share Purchase Price of Shares: $7.113
Number of Warrants:
Class C: 300,000
Class D: 200,000
Exercise price of Warrants:
Class C: $8.00
Class D: $10.00
17
