EXHIBIT 4.10
IMMUNOMEDICS, INC.
$10,000,000
3.25% Convertible Senior Notes Due
2006
PURCHASE AGREEMENT
January 12, 2004
Bear Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
IMMUNOMEDICS, INC., a Delaware
corporation (the “ Company ”), hereby confirms
its agreement with BEAR STEARNS & CO. INC. (the “
Purchaser ”) as set forth below.
1. Notes . The Company
proposes to issue and sell to the Purchaser $10,000,000 principal
amount of its 3.25% Convertible Senior Notes Due 2006 (the “
Notes ”) and herein grants to Purchaser an option to
purchase an additional $3,000,000 principal amount of Notes having
the same terms as the initial Notes to be issued including, without
limitation, the same conversion price. The Notes are to be issued
under an indenture (the “ Indenture ”) to be
dated as of the Closing Date (as defined below) by and between the
Company and The Bank of New York, as trustee (the “
Trustee ”). This Agreement, the registration rights
agreement, to be dated the Closing Date, by and between the
Purchaser and the Company (the “ Registration Rights
Agreement ”) and the Indenture are hereinafter
collectively referred to as the “ Transaction
Documents ” and the transactions contemplated herein and
therein are hereinafter referred to as the “
Transactions ”.
The sale of the Notes to the
Purchaser will be made without registration of the Notes under the
Securities Act of 1933, as amended (the “ Securities
Act ”), in reliance upon certain exemptions from the
registration requirements of the Securities Act. You have advised
the Company that you may offer and sell the Notes purchased by you
hereunder in accordance with Section 4 hereof as soon as you deem
advisable.
2. Representations and Warranties
and Agreements of the Company. The Company represents and
warrants to, and agrees with, the Purchaser that, except as
otherwise disclosed in the Company’s Annual Report on Form
10-K (the “ Company Annual Report ”) most
recently filed with the Securities and Exchange Commission (the
“ SEC ”) and all subsequent reports
(collectively, the “ Exchange Act Reports
”):
(a) The Company Annual Report and
all Exchange Act Reports that have been, or will be, filed by the
Company with the SEC or sent to shareholders pursuant to the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), do not and will not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Such documents, when filed with the SEC, did, or will,
conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the SEC
thereunder.
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(b) The Company has no direct or
indirect subsidiaries other than those subsidiaries (the “
Subsidiaries ”) listed on Schedule 2
hereto.
(c) The Company and the Subsidiaries
have been each duly incorporated and each is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material
business, except in such jurisdictions in which the failure to so
qualify, in the aggregate, would not have a Material Adverse
Effect. “ Material Adverse Effect ” shall mean a
material adverse effect on (i) the business, operations,
properties, assets, liabilities, net worth, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries, taken
as a whole, or (ii) the ability of the Company to perform any of
its obligations under the Transaction Documents or the Notes or to
consummate the Transactions.
(d) Neither the Company nor any of
the Subsidiaries is (i) in violation of its charter or by-laws or
(ii) in breach or violation of any of the terms or provisions of,
or with the giving of notice or lapse of time, or both, would be in
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, or any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
the Subsidiaries or any of their respective properties, except for
violations and defaults which individually or in the aggregate
would not have a Material Adverse Effect.
(e) Each of the Company and the
Subsidiaries owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be,
and to operate the properties and to carry on the business of the
Company and its Subsidiaries as is currently conducted and each of
them is in full force and effect, except in each case where the
failure to obtain licenses, permits, certificates, consents,
orders, approvals and other authorizations, or to make all
declarations and filings, would not, individually or in the
aggregate, have a Material Adverse Effect, and none of the Company
or the Subsidiaries has received any notice relating to revocation
or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except where such
revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect.
(f) The authorized capital stock of
the Company consists of 70,000,000 shares of common stock, par
value $0.01 per share, and 10,000,000 shares of preferred stock,
par value $0.01 per share. As of September 30, 2003, (i) 883,193
shares of common Stock are issued and outstanding, (ii) no shares
of preferred stock are issued and outstanding, and (iii) 4,175,750
shares of common stock are reserved for issuance upon exercise of
Company options under the
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Company’s 1992 and 2002 Stock Option Plans
(the “ Stock Option Plans ”). All of the issued
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable.
(g) The issued shares of capital
stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned of
record and beneficially by the Company, either directly or through
wholly owned subsidiaries, free and clear of any pledge, lien,
encumbrance, security interest, restriction on voting or transfer,
preemptive rights or other defect in title or any claim of any
third party.
(h) The shares of common stock of
the Company issuable upon conversion of, and as interest payments
on, the Notes (the “ Note Shares ”) will be duly
and validly issued, fully paid and nonassessable and not subject to
preemptive or similar rights, and such Note Shares will be issued
in compliance with all applicable federal and state securities
laws, when issued, sold and delivered in accordance with the terms
of the Notes.
(i) The Company has reserved and
will keep available, free from preemptive rights, out of its
authorized but unissued common stock, for the purpose of effecting
the conversion of the Notes, such number of its duly authorized
common stock sufficient to effect the conversion of all Notes at
any time.
(j) No Subsidiary is prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of
such Subsidiary’s property or assets to the Company or any
other Subsidiary.
(k) There are no outstanding (i)
securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (ii) warrants,
rights or options to subscribe for or purchase from the Company any
such capital stock or any such convertible or exchangeable
securities or obligations or (iii) obligations of the Company to
issue such shares, any such convertible or exchangeable securities
or obligations, or any such warrants, rights or options.
(l) Other than the Company’s
common stock, $0.01 par value per share, there are no securities of
the Company registered under the Securities Exchange Act of 1934,
as amended (the “ Exchange Act ”), or listed on
a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
(m) The consolidated financial
statements (including the notes thereto) included in the Exchange
Act Reports fairly present the financial position of the Company
and its consolidated subsidiaries and the results of operations as
of the dates and for the periods specified therein; since the date
of the latest of such financial statements, there has been no
change nor any development or event involving a prospective change
which will have or could reasonably be expected to have a Material
Adverse Effect; such financial statements have been prepared in
accordance with generally accepted accounting principles in the
United States applied on a consistent basis.
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(n) Since the date of the latest
audited financial statements included in the Exchange Act Reports,
(i) the Company and each of the Subsidiaries have not incurred any
material liability or obligation, direct or contingent, nor has the
Company or any Subsidiary entered into any material transaction not
in the ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared, paid
or otherwise made any dividend or distribution of any kind on its
capital stock; and (iii) there has not been any material change in
the capital stock, short-term debt or long-term debt of the Company
and each of the Subsidiaries.
(o) The Company and each of the
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(p) The Company is in compliance in
all material respects with the Sarbanes-Oxley Act of
2002.
(q) The Transaction Documents have
been duly authorized by all necessary corporate action of the
Company and, when duly executed and delivered by the Company and
the Trustee, will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with
their respective terms, subject, as to the enforcement of remedies,
to general equity principles and to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect, and
except as rights to indemnity and contribution may be limited by
federal or state securities laws.
(r) The Notes have been duly
authorized by all necessary corporate action for issuance and sale
pursuant to this Agreement and, when executed, authenticated,
issued and delivered in the manner provided for in the Indenture
and sold and paid for as provided in this Agreement, the Notes will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms and the terms of the
Indenture, subject, as to the enforcement of remedies, to general
equity principles and to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors rights
generally from time to time in effect.
(s) The issuance, offering and sale
of the Notes to the Purchaser by the Company, pursuant to this
Agreement, and the compliance by the Company with the other
provisions of the Transaction Documents herein and therein set
forth do not and will not (i) require the consent, approval,
authorization, order, registration or qualification of, or filing
with, any governmental authority or court, or body or arbitrator
having jurisdiction over the Company or (ii) conflict with, result
in a breach or violation of, or constitute a default under, (A) any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company is a party or by which the Company
or any of its properties is bound, (B) the charter or by-laws of
the Company, (C) any material statute, rule or regulation of any
governmental authority
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applicable to the Company or any of its
properties or assets or (D) any judgment, order or decree of any
government, government instrumentality, agency, body or court
having jurisdiction over the Company or any of its properties or
assets.
(t) Except as set forth in the
certificate of fact accompanying the opinion of counsel for the
Company delivered to Purchaser pursuant to Section 7(a), no legal
or governmental proceedings or investigations are pending to which
the Company or any of the Subsidiaries is a party or to which the
property of the Company or any of the Subsidiaries is subject, and
no such proceedings or investigations have been threatened against
the Company and any of the Subsidiaries or with respect to any of
their respective properties, except in each case for such
proceedings or investigations that, if the subject of an
unfavorable decision, ruling or finding, would not, singly or in
the aggregate, result in a Material Adverse Effect.
(u) Neither the Company nor any of
the Subsidiaries owns any “margin securities” as that
term is defined in Regulation U of the Board of Governors of the
Federal Reserve System (the “ Federal Reserve Board
”), and none of the proceeds of the sale of the Notes will be
used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase
or carry any margin security or for any other purpose which might
cause any of the Notes to be considered a “purpose
credit” within the meanings of Regulation T, U or X of the
Federal Reserve Board.
(v) No relationship, direct or
indirect, exists between or among the Company or any of the
Subsidiaries, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company or any of the
Subsidiaries on the other hand, that relates to the transactions
and that would be required by the Securities Act to be described in
a prospectus were the Notes being issued and sold in a public
offering, that is not set forth in the Company’s Exchange Act
Reports.
(w) The fair salable value of the
assets of the Company exceeds the amount that will be required to
be paid on or in respect of its existing debts and other known
liabilities (including known contingent liabilities) as they
mature; the Company does not intend to, and does not believe that
it will, incur debts beyond its ability to pay such debts as they
mature; and upon the issuance of the Notes, the fair salable value
of the assets of the Company will exceed the amount that will be
required to be paid on or in respect of its existing debts and
other liabilities (including known contingent liabilities) as they
mature.
(x) Subsequent to the
Company’s most recently filed Annual Report on Form 10-K,
neither the Company nor any of the Subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding and there shall not have been
any material adverse change, or any development involving a
prospective material adverse change, in the business, operations,
properties, assets, liabilities, net worth, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries, taken
as a whole.
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(y) Other than for collateral
pledged to Fleet National Bank pursuant to a certain pledge
agreement dated May 27, 2003, the Company and each of the
Subsidiaries have good and marketable title in fee simple to all
items of real property and marketable title to all personal
property owned by each of them, free and clear of any pledge, lien,
encumbrance, security interest or other defect or claim of any
third party, except such as do not materially and adversely affect
the value of such property and do not interfere with the use made
or proposed to be made of such property by the Company or such
Subsidiaries, and any real property and buildings leased by the
Company or such Subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such
property and buildings by the Company or such
Subsidiaries.
(z) ERISA :
(i) Definitions:
“ Code ” means
the United States Internal Revenue Code of 1986, as amended, and
the regulations promulgated and the rulings issued
thereunder.
“ ERISA ” means
the United States Employee Retirement Income Security Act of 1974,
as amended, and the regulations promulgated and rulings issued
thereunder.
“ ERISA Affiliate
,” means each trade or business (whether or not incorporated)
that would be treated together with the Company as a single
employer under Title IV or Section 302 of ERISA or Section 412 of
the Code.
“ ERISA Event ”
means (i) the occurrence of a “reportable event”
described in Section 4043 of ERISA (other than an event with
respect to which the 30 day notice requirement has been waived), or
(ii) the provision or filing of a notice of intent to terminate a
Plan (other than in a standard termination within the meaning of
Section 4041 of ERISA) or the treatment of a Plan amendment as a
distress termination under Section 4041 of ERISA, or (iii) the
institution of proceedings to terminate a Plan by the PBGC, or (iv)
the existence of any “accumulated funding deficiency”
or “liquidity shortfall” (within the meaning of Section
302 of ERISA or Section 412 of the Code), whether or not waived, or
the filing of an application pursuant to Section 412(e) of the Code
or Section 304 of ERISA for any extension of an amortization
period, or (v) the receipt of notice by the Company or any ERISA
Affiliate that any Multiemployer Plan may be terminated,
partitioned or reorganized or that any Multiple Employer Plan may
be terminated, or (vi) the occurrence of any transaction or event
which might reasonably be expected to constitute grounds for the
imposition of liability under ERISA.
“ Multiemployer Plan
” means a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA.
“ Multiple Employer
Plan ” means an employee benefit plan described in
Section 4063 of ERISA.
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“ Plan ” means an
employee benefit plan (within the meaning of Section 3(3) of ERISA)
other than a Multiemployer Plan, sponsored or maintained by the
Company or any of its ERISA Affiliates, or with respect to which
the Company or any of its ERISA Affiliates could be subject to any
liability under Title IV or Section 302 of ERISA or Section 412 of
the Code.
“ Underfunding ”
means, with respect to any Plan subject to Title IV of ERISA, the
excess, if any, of the “projected benefit obligations”
(within the meaning of Statement of Financial Accounting Standards
87) under such Plan (determined using the actuarial assumptions
used for purposes of calculating funding requirements in the most
recent actuarial report for such plan) over the fair market value
of the assets held under the Plan.
(ii) No “prohibited
transaction” (as defined in Section 406 of ERISA or Section
4975 of the Code) or ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan which could reasonably
be expected to have a Material Adverse Effect; the Company, its
ERISA Affiliates and each such Plan is in compliance in all
material respects with applicable law, including ERISA and the
Code; the Company and each of its ERISA Affiliates have not
incurred and do not expect to incur liability under Title IV of
ERISA with respect to the termination, or withdrawal from, any Plan
or Multiemployer Plan for which the Company or any of the
Subsidiaries would have any liability; and each Plan that is
intended to be qualified under Section 401(a) of the Code has filed
for or received a favorable determination letter from the Internal
Revenue Service and has not been amended in any way that could
reasonably be expected to cause the loss of such qualification. No
Underfunding exists with respect to any Plan.
(iii) None of the Company or any of
its ERISA Affiliates contributes to or has any obligation to
contribute to any Multiemployer Plans and Multiple Employer
Plans.
(iv) No labor dispute with the
employees of the Company and any of the Subsidiaries exists or is
threatened or imminent which could result in a Material Adverse
Effect.
(aa) The Company and each of the
Subsidiaries own or otherwise possess the right to use all patents,
trademarks, service marks, trade names and copyrights, all
applications and registrations for each of the foregoing, and all
other proprietary rights and confidential information used in the
conduct of their respective businesses as currently conducted; and
neither the Company nor any of the Subsidiaries has received any
notice, or is otherwise aware, of any infringement of or conflict
with the rights of any third party with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(bb) The Company and each of the
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts
and with such deductibles as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any
such Subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such 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 at a cost that would not have a Material
Adverse Effect.
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(cc) Environmental Matters
:
(i) The Company and each of the
Subsidiaries are and have been in compliance with all applicable
laws, statutes, ordinances, rules, regulations, orders, judgments,
decisions, decrees, standards, and requirements (“ Legal
Requirements ”) relating to: human health and safety;
pollution; management, disposal or release of any chemical
substance, product or waste; and protection, cleanup, remediation
or corrective action relating to the environment or natural
resources (“ Environmental Law ”);
(ii) The Company and each of the
Subsidiaries have obtained and are in compliance with the
conditions of all permits, authorizations, licenses, approvals,
authorizations, and variances necessary under any Environmental Law
for the continued conduct in the manner now conducted of the
business of the Company and each of such Subsidiaries (“
Environmental Permits ”);
(iii) There are no past or present
conditions or circumstances, including but not limited to pending
changes in any Environmental Law or Environmental Permit, that are
likely to interfere with the conduct of the business of the Company
and each of the Subsidiaries in the manner now conducted or which
would interfere with compliance with any Environmental Law or
Environmental Permit; and
(iv) There are no past or present
conditions or circumstances at, or arising out of, the business,
assets and properties the Company and each of the Subsidiaries or
any formerly leased, operated or owned businesses, assets or
properties of the Company and any of the Subsidiaries, including
but not limited to on-site or off-site disposal or release of any
chemical substance, product or waste, which may give rise to: (i)
liabilities or obligations for any cleanup, remediation or
corrective action under any Environmental Law, (ii) claims arising
under any Environmental Law for personal injury, property damage,
or damage to natural resources, (iii) liabilities or obligations
incurred by the Company and the Subsidiaries to comply with any
Environmental Law, or (iv) fines or penalties arising under any
Environmental Law;
except for any noncompliance or conditions or
circumstances that, singly or in the aggregate, would not result in
a Material Adverse Effect.
(dd) The Company and each of the
Subsidiaries have filed all foreign, federal, state and local tax
returns that are required to be filed or have requested extensions
thereof and have paid all taxes required to be paid by them and any
other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested
in good faith and for which the Company retains adequate
reserves.
(ee) Neither the Company nor any of
the Subsidiaries is, or immediately after the sale of the Notes and
the application of the proceeds from such sale will be, an
“investment company” or a company “controlled
by” an “investment company”, within the meaning
of the
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Investment Company Act of 1940, as amended (the
“ Investment Company Act ”), and the rules and
regulations of the SEC thereunder, without taking account of any
exemption under the Investment Company Act arising out of the
number of holders of the securities of the Company.
(ff) Neither the Company nor any of
the Subsidiaries is a “holding company” or a
“subsidiary company” of a holding company or its
“affiliate” within the meaning of the Public Utility
Holding Company Act of 1934, as amended.
(gg) Neither the Company, nor to its
knowledge, any of its Affiliates, nor to its knowledge any person
acting on its or their behalf has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration
of the Notes under the Securities Act. As used in this Agreement,
“ Affiliate ” means, with respect to any
specified person, any other person that, directly or indirectly, is
in control of, is controlled by, or is under common control with,
such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause
the direction of the management and policies of such person whether
by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the
foregoing.
(hh) Neither the Company, nor to its
knowledge any of its Affiliates, nor to its knowledge any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Notes in
the United States.
(ii) Neither the Company, nor to its
knowledge any of its Affiliates, nor to its knowledge any person
acting on its or their behalf has engaged in any directed selling
efforts with respect to the Notes, and each of them has complied
with the offering restrictions requirement of Regulation S under
the Securities Act (“ Regulation S ”). Terms
used in this paragraph have the meanings given to them by
Regulation S.
(jj) Neither Immunomedics, B.U.
(Netherlands) nor Immunomedics GmbH (Germany) has any indebtedness
except for trade debt incurred in the ordinary course of business.
It is agreed and understood that the representation and warranty
under this Section 2(jj) shall be read without reference to the
qualification contained in the introduction to this Section
2.
(kk) Neither the Company nor to its
knowledge any of its Affiliates (as defined in Rule 501(b) of
Regulation D under the Securities Act (“ Regulation D
”)) has taken, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes; nor has the Company or
any Affiliate of the Company paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities
of the Company (except as contemplated by this
Agreement).
(ll) The Notes satisfy the
eligibility requirements of Rule 144A(d)(3) under the Securities
Act.
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(mm) Assuming the accuracy of the
representations and warranties of the Purchaser in Section 4 hereof
and compliance by the Purchaser with the procedures set forth in
Section 4 hereof, it is not necessary in connection with the offer,
sale and delivery of the Notes to the Purchaser in the manner
contemplated by this Agreement to register any of the Notes under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(nn) The Company has not provided to
the Purchaser any material non-public information or other
information which, according to applicable law, rule or regulation,
was required to have been disclosed publicly by the Company but
which has not been so disclosed, other than the material terms and
conditions of the transactions contemplated by this Agreement,
which such terms and conditions shall be publicly disclosed on the
date hereof.
Each certificate signed by any
officer of the Company and delivered to the Purchaser or its
counsel shall be deemed to be a representation and warranty by the
Company to the Purchaser as to the matters covered
thereby.
3. Purchase, Sale and Delivery of
the Notes .
(a) On the basis of the
representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth,
the Company agrees to issue and sell $10,000,000 aggregate
principal amount of Notes, and the Purchaser agrees to purchase
(the “ Initial Purchase ”) from the Company
$10,000,000 aggregate principal amount of Notes at a purchase price
equal to $10,050,000.
(b) Purchaser shall have the option
to purchase (the “ Option ”), and if such Option
is exercised, the Company hereby agrees to issue and sell to
Purchaser, up to an additional $3,000,000 aggregate principal
amount of Notes at a purchase price equal to 100% of the principal
amount thereof. The exercise of such option by Purchaser shall be
in its sole discretion, given by written notice to the Company on
or before July 12, 2004 (the “ Option Notice
”).
(c) At the closing of the Initial
Purchase and the Option, if applicable, one or more certificates in
definitive form as instructed by the Purchaser for the Notes, and
in suc
