SECURITIES PURCHASE
AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT (this “ Agreement
”), dated as of September 10, 2009, by and among Alseres
Pharmaceuticals, Inc., a Delaware corporation with headquarters
located at 239 South Street, Hopkinton, MA 01748 (the “
Company ”) and each investor identified on the
signature pages hereto (individually, an “ Investor
” and collectively, the “ Investors)
.
A. The
Company and each Investor is executing and delivering this
Agreement in reliance upon the exemption from registration afforded
by Section 4(2) of the Securities Act of 1933, as amended (the
“ Securities Act ”), and Rule 506 of
Regulation D as promulgated by the United States Securities
and Exchange Commission (the “ SEC ”) under the
Securities Act.
B. Each
Investor, severally and not jointly, wishes to purchase, and the
Company wishes to sell, upon the terms and conditions stated in
this Agreement and for a purchase price of $25 per share, that
aggregate number of shares of Series F Convertible Preferred
Stock, par value $0.01 per share, of the Company (the “
Series F Stock ”), set forth on such
Investor’s signature page to this Agreement (which aggregate
amount for all Investors together shall be up to 100,000 shares of
Series F Stock and shall collectively be referred to herein as
the “ Shares ”).
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the
Investors, severally and not jointly, agree as follows:
1.1
Definitions . In addition to the terms defined elsewhere in
this Agreement, the following terms have the meanings
indicated:
“
Affiliate ” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the
Securities Act.
“Agreement” has the meaning set forth in the
Preamble.
“
Business Day ” means any day other than Saturday,
Sunday, any day which shall be a federal legal holiday in the
United States or any day on which banking institutions in The State
of New York are authorized or required by law or other governmental
action to close.
“
Closing ” has the meaning set forth in the in
Section 2.1 .
“ Closing
Date ” has the meaning set forth in
Section 2.1 .
“
Company ” has the meaning set forth in the
Preamble.
“ Company
Counsel ” means Wilmer Cutler Pickering Hale and Dorr
LLP, counsel to the Company.
“ Common
Stock ” means shares of common stock, par value $0.01 per
share, of the Company.
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“
Convertible Securities ” means any stock or securities
(other than Options) convertible into or exercisable or
exchangeable for Common Stock.
“Disclosure Materials ” has the meaning set
forth in Section 3.1(e) .
“Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
“FINRA” has the meaning set forth in
Section 3.2(c).
“Investor” has the meaning set forth in the
Preamble.
“Lien ” means any lien, charge, claim, security
interest, encumbrance, right of first refusal or other
restriction.
“
Material Adverse Effect ” means (i) a material
adverse effect on the results of operations, assets, business or
financial condition of the Company and its subsidiaries taken as a
whole on a consolidated basis or (ii) material and adverse
impairment of the Company’s ability to perform its
obligations under this Agreement, provided, that none of the
following alone shall be deemed, in and of itself, to constitute a
Material Adverse Effect: (i) a change in the market price or
trading volume of the Common Stock or (ii) changes in general
economic conditions or changes affecting the industry in which the
Company operates generally (as opposed to Company-specific changes)
so long as such changes do not have a disproportionate effect on
the Company and its subsidiaries taken as a whole.
“
Options ” means any outstanding rights, warrants or
options to subscribe for or purchase Common Stock or Convertible
Securities.
“
Restricted Shares ” has the meaning set forth in
Section 4.1(a) .
“SEC” has the meaning set forth in the
Preamble.
“ SEC
Reports ” has the meaning set forth in
Section 3.1(e) .
“
Series F Stock ” has the meaning set forth in the
Preamble.
“
Shares ” has the meaning set forth in the
Preamble.
“Securities Act” has the meaning set forth in
the Preamble.
“Short
Sales” has the meaning set forth in
Section 3.2(i) .
“ Trading
Day ” means (i) a day on which the Common Stock is
traded on a Trading Market (other than the OTC Bulletin Board), or
(ii) if the Common Stock is not listed or quoted on a Trading
Market (other than the OTC Bulletin Board), a day on which the
Common Stock is traded in the over-the-counter market, as reported
by the OTC Bulletin Board, or (iii) if the Common Stock is not
listed or quoted on any Trading Market, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the
Pink Sheets LLC (or any similar organization or agency succeeding
to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i),
(ii) and (iii) hereof, then Trading Day shall mean a
Business Day.
“ Trading
Market ” means whichever of the New York Stock Exchange,
the American Stock Exchange, the NASDAQ Global Select Market, the
NASDAQ Global Market, the NASDAQ Capital Market or the OTC Bulletin
Board on which the Common Stock is listed or quoted for trading on
the date in question.
“Transaction” has the meaning set forth in
Section 3.2(i) .
“
Transfer Agent ” means Continental Stock Transfer
& Trust Company, or any successor transfer agent for the
Company.
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ARTICLE II
PURCHASE AND SALE
2.1 Closing
. The Closing (the “ Closing ”) of the sale and
purchase of the Shares under this Agreement shall take place on the
date hereof (the “ Closing Date ”), at the
offices of Company Counsel or remotely via the exchange of
documents and signatures.
(a) At
the Closing, the Company shall deliver or cause to be delivered to
each Investor evidence of a direct registration account in such
Investor’s name as set forth on such Investor’s
signature page to this Agreement, and the deposit, by direct
registration, into such account of the number of Shares purchased
by such Investor.
(b) At
the Closing, each Investor shall deliver or cause to be delivered
to the Company the purchase price set forth on such
Investor’s signature page to this Agreement in United States
dollars and in immediately available funds, by wire transfer to an
account designated in writing to such Investor by the Company for
such purpose.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company . The Company
hereby represents and warrants to the Investors as
follows:
(a)
Organization and Qualification . The Company is an entity
duly organized, validly existing and in good standing under the
laws of the State of Delaware, with the requisite power and
authority to own and occupy its properties and to carry on its
business as currently conducted. The Company is not in violation of
any of the provisions of its certificate of incorporation or
bylaws. The Company is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b)
Authorization; Enforcement . The Company has the requisite
corporate authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry
out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company and no
further consent or action is required by the Company, its Board of
Directors or its stockholders. This Agreement has been (or upon
delivery will be) duly executed by the Company and, assuming the
due authorization, execution and delivery by the Investors, is, or
when delivered in accordance with the terms hereof, will
constitute, the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies.
(c)
No Conflicts . The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not, and will not,
(i) conflict with or violate any provision of the
Company’s certificate of incorporation or bylaws,
(ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other
agreement to which the Company is a party or by which any property
or asset of the Company is bound, or affected, except to the extent
that such conflict, default, termination, amendment, acceleration
or cancellation right would not reasonably be expected to have a
Material Adverse Effect, or (iii) result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company is subject (including,
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assuming the
accuracy of the representations and warranties of the Investors set
forth in Section 3.2 hereof, federal and state
securities laws and regulations and the rules and regulations of
any self-regulatory organization to which the Company or its
securities are subject), or by which any property or asset of the
Company is bound or affected, except to the extent that such
violation would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(d)
Issuance of Shares and Common Stock . The issuance, sale and
delivery of the Shares in accordance with this Agreement, and the
issuance and delivery of the shares of Common Stock issuable upon
conversion of the Shares, have been duly authorized. The Shares
when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement, and the shares of
Common Stock issuable upon conversion of the Shares, when issued
upon such conversion, will be duly and validly issued, fully paid
and nonassessable, free and clear of all Liens and will not be
subject to preemptive or similar rights of stockholders (other than
those provided for in this Agreement). The Company has reserved
from its duly authorized capital stock the number of shares of
Common Stock issuable upon conversion of the Shares.
(e)
SEC Reports . The Company has filed all documents required
to be filed by it under the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the twelve months preceding the
date hereof on a timely basis or has received a valid extension of
such time of filing and has filed any such documents prior to the
expiration of any such extension and has filed all documents
required to be filed by it under the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof, such documents, together with any
materials filed or furnished by the Company under the Exchange Act,
whether or not any such reports were required being collectively
referred to herein as the “ SEC Reports ” and,
together with this Agreement, the “ Disclosure
Materials ”. As of their respective dates (or, if amended
or superseded by a filing prior to the Closing Date, then on the
date of such filing), the SEC Reports filed by the Company complied
in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the SEC
promulgated thereunder, and none of the SEC Reports, when filed
(or, if amended or superseded by a filing prior to the Closing
Date, then on the date of such filing) by the Company, 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.
(f)
Capitalization . The authorized capital stock of the Company
(immediately prior to the Closing) consists of 80,000,000 shares of
Common Stock, of which 23,055,645 were issued and outstanding as of
such date and 1,000,000 shares of preferred stock, $.01 par value
per share, of which 25,000 shares are designated as Series A
Convertible Preferred Stock, 500,000 shares are designated as
Series D Convertible Preferred Stock, 800 shares are
designated as Series E Convertible Preferred Stock and 200,000
shares are designated as Series F Stock, of which 168,000
shares were issued and outstanding as of such date. All outstanding
shares of capital stock are duly authorized, validly issued, fully
paid and nonassessable and have been issued in compliance in all
material respects with all applicable securities laws. Except as
disclosed in or contemplated the SEC Reports, the Company does not
have outstanding any other Options, script rights to subscribe to,
calls or commitments relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or
entered into any agreement giving any Person any right to subscribe
for or acquire, any shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. Except as
set forth in the SEC Reports, and except for customary adjustments
as a result of stock dividends, stock splits, combinations of
shares, reorganizations, recapitalizations, reclassifications or
other similar events, there are no anti-dilution or price
adjustment provisions contained in any security issued by the
Company (or in any agreement providing rights to security holders)
and the issuance and sale of the Securities will not obligate the
Company to issue shares of Common Stock or other securities to any
Person (other than the Investors) and will not result in a right of
any holder of the Company’s securities to adjust the
exercise, conversion, exchange or reset price under such
securities.
(g)
Compliance . Except as would not, individually or in the
aggregate, reasonably be expected to have or result in a Material
Adverse Effect, (i) the Company is not in default under or in
violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a
default by the Company
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under), nor has
the Company received written notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it
is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived),
(ii) the Company is not in violation of any order of any
court, arbitrator or governmental body, and (iii) the Company
is not in violation of any statute, rule or regulation of any
governmental authority.
3.2
Representations and Warranties of the Investors . Each
Investor hereby, as to itself only and for no other Investor,
represents and warrants to the Company as follows:
(a)
Organization; Authority . If such Investor is an entity,
such Investor is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization with the requisite corporate, partnership or other
power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry
out its obligations hereunder. The purchase by such Investor of the
Shares hereunder has been duly authorized by all necessary
corporate, partnership or other action on the part of such
Investor. This Agreement has been duly executed and delivered by
such Investor and constitutes the valid and binding obligation of
such Investor, enforceable against it in accordance with its
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