-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HB6Eeoqo+X69/4fJwNRn3I4zYs/sb7W8pMRS/CoaBRpPu/gyjyMw9ZNZVafa2vDN JLIRZtZcLB7Ye0e3y6oE6Q== 0000930661-02-000686.txt : 20020415 0000930661-02-000686.hdr.sgml : 20020415 ACCESSION NUMBER: 0000930661-02-000686 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20020311 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020312 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BOSTON LIFE SCIENCES INC /DE CENTRAL INDEX KEY: 0000094784 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 870277826 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-06533 FILM NUMBER: 02573303 BUSINESS ADDRESS: STREET 1: 137 NEWBURY STREET STREET 2: 8TH FLOOR CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 6174250200 MAIL ADDRESS: STREET 1: 137 NEWBURY STREET STREET 2: 8TH FLOOR CITY: BOSTON STATE: MA ZIP: 02116 FORMER COMPANY: FORMER CONFORMED NAME: GREENWICH PHARMACEUTICALS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: STRATEGIC MEDICAL RESEARCH CORP /DE DATE OF NAME CHANGE: 19790521 8-K 1 d8k.txt BOSTON LIFE SCIENCES FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported) March 11, 2002 ----------------- BOSTON LIFE SCIENCES, INC. -------------------------- (Exact name of registrant as specified in its charter) Delaware 0-6533 87-0277826 - ------------------------------------------ ------ --------------------------------------- (State or other jurisdiction of (Commission (I.R.S. Employer Identification No.) incorporation or organization) File No.) 137 Newbury Street 8th Floor Boston, Massachusetts 02116 - ------------------------------------------ -------------------- (Address of principal executive offices) Zip Code
Registrant's telephone number, including area code (617) 425-0200 ----------------- Item 5. Other Events. ------------ On March 11, 2002, Boston Life Sciences, Inc., a Delaware corporation (the "Company"), issued and sold pursuant to Subscription Agreements dated as of March 11, 2002, by and among the Company and the investors identified therein (i) 1,599,568 shares of common stock at a price per share of $2.15 and (ii) warrants to purchase an aggregate of 399,892 shares of Common Stock (the "Investor Warrants") with an exercise price equal to $2.75 per share. Brimberg & Co. L.P. acted as placement agent and received compensation consisting of a customary cash placement fee and a warrant to purchase 157,557 shares of Common Stock with an exercise price equal to $2.75 per share (such warrant, together with the Investor Warrants, the "Warrants"). The Shares and the Warrants were sold in a private placement pursuant to Regulation D under the Securities Act of 1933, as amended (the "Securities Act"). Pursuant to the terms of a Registration Rights Agreement, dated as of March 11, 2002, by and among the Company and the investors identified therein, the Company is obligated to file with the Securities and Exchange Commission, on or before June 9, 2002, a registration statement under the Securities Act to register for resale the Shares and the shares of Common Stock issuable upon exercise of the Warrants. The Company's press release announcing the private placement is filed as an exhibit hereto, along with the form of Subscription Agreement executed with each investor, the Registration Rights Agreement and the form of Warrant. This summary description of the private placement is qualified in its entirety by reference to the documents filed as exhibits hereto. Item 7. Financial Statements and Exhibits. --------------------------------- (c) Exhibits: -------- Exhibit No. Description - ----------- ----------- 99.1 Form of Subscription Agreement, dated as of March 11, 2002, executed by the Company and each investor in the private placement 99.2 Registration Rights Agreement, dated as of March 11, 2002, by and among the Company and the Investors named therein 99.3 Form of Warrant to Purchase Common Stock 99.4 Press Release issued by the Company on March 11, 2002 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BOSTON LIFE SCIENCES INC. Date: March 12, 2002 By: /s/ Joseph Hernon ------------------ Name: Joseph Hernon Title: Chief Financial Officer and Secretary EXHIBIT INDEX The following designated exhibits are filed herewith: Exhibits: - -------- Exhibit No. Description - ----------- ----------- 99.1 Form of Subscription Agreement, dated as of March 11, 2002, executed by the Company and each investor in the private placement 99.2 Registration Rights Agreement, dated as of March 11, 2002, by and among the Company and the Investors named therein 99.3 Form of Warrant to Purchase Common Stock 99.4 Press Release issued by the Company on March 11, 2002 EX-99.1 3 dex991.txt FORM OF SUBSCRIPTION AGREEMENT Exhibit 99.1 FORM OF SUBSCRIPTION AGREEMENT Boston Life Sciences, Inc. 137 Newbury Street Boston, Massachusetts 02116 Ladies and Gentlemen: 1. Subscription. ------------ (a) The undersigned ("Subscriber"), intending to be legally bound, hereby irrevocably subscribes to purchase from Boston Life Sciences, Inc., a Delaware corporation (the "Company") the aggregate dollar amount of units (the "Units") set forth on the signature page hereof. Each Unit consists of four shares of common stock (the "Common Stock"), $.01 par value (each a "Share" and collectively the "Shares"), and a warrant to purchase one share of Common Stock (each a "Warrant" and collectively the "Warrants"). The offering price for each Share will be $2.15 (the "Offering Price"). The per share exercise price for each Warrant will be the greater of (i) $2.75 per share and (ii) (a) the closing bid price for the Common Stock as reported by Nasdaq on the trading day preceding the closing (each closing, a "Closing"), plus (b) $.01. The minimum investment is for $100,000, subject to the discretion of the Company and the Placement Agent to accept lesser amounts. The Company will not accept subscriptions for any fractional Units, such that the maximum number of Units to be purchased by the Subscriber will be equal to the maximum number of full Units purchasable at the Offering Price for the aggregate dollar amount subscribed for on the signature page hereof. This subscription is submitted to you in accordance with and subject to the terms and conditions described in this agreement (the "Subscription Agreement") and the Confidential Private Placement Memorandum, dated January 16, 2002, including exhibits and appendices thereto and any documents and information incorporated therein by reference, as it may be supplemented and amended (the "Memorandum"), relating to an offering (the "Offering") of a maximum of 1,000,000 Units (the "Maximum Offering"). (b) (1) Subscription payments should be made by wire transfer as follows: Bank: Chase Manhattan Bank Account: Continental Stock Transfer & Trust Company aaf Boston Life Sciences, Inc. 2002 Account #: 530-053764 ABA#: 021000021 (2) Each Subscriber should also deliver the following to Boston Life Sciences, Inc., 137 Newbury Street, 8th Floor, Boston, MA 02116, Attention: Joseph P. Hernon, Chief Financial Officer: (i) two executed and properly completed copies of this Subscription Agreement, (ii) two executed copies of the registration rights agreement between the Company, the Subscriber and the other parties thereto in the form provided herewith (the "Registration Rights Agreement"), and (iii) two executed copies of the confidentiality agreement between the Company and the Subscriber (the "Confidentiality Agreement"). The proceeds of the Offering will be held in an escrow account by Continental Stock. Transfer & Trust Company, as escrow agent (the "Escrow Agent"), until subscriptions are received and accepted by the Company. The Company may elect to hold an initial Closing (the "Initial Closing") at such time as subscriptions are received and accepted by the Company for the minimum offering of 350,000 Units (the "Minimum Offering"). The Offering will continue until the soonest to occur of (i) subscriptions for the Maximum Offering are accepted by the Company, (ii) the Company elects, in its sole discretion, to terminate the Offering, or (iii) March 15, 2002, provided that the Offering may continue past March 15, 2002 if extended by the mutual consent of the Company and the Placement Agent (as defined below) without notice to investors. The date that the Offering terminates is hereinafter referred to as the "Termination Date." Upon a Closing, the Escrow Agent will distribute the proceeds from the sale of the Units to the Company. The Offering Price for any initial Closing will be the Offering Price for all subsequent Closings, if any. Applicable investor funds will be returned, without interest or deduction, if and to the extent a subscription is not accepted by the Company (including any amount by which a Subscriber's subscription payments exceed the aggregate Offering Price for the number of full Units for which such Subscriber's subscription was accepted by the Company), or if a Closing with respect to such funds does not occur at or prior to the Termination Date, as the same may be extended. (c) If this subscription is accepted by the Company, in whole or in part, and subject to the conditions set forth in Section 2 of this Subscription Agreement, the Company shall deliver to the undersigned a certificate representing the Shares and an originally executed copy of the Warrant subscribed for hereby, in each case to the extent so accepted, dated the date of the applicable Closing, and a fully executed copy of this Subscription Agreement, the Registration Rights Agreement and the Confidentiality Agreement. (d) The Company has retained Brimberg & Co. L.P. ("Brimberg" or the "Placement Agent") to act as lead placement agent for the Offering on a best efforts basis. For those clients of Brimberg who purchase Units in the Offering, up to an aggregate of $7 million, Brimberg will receive (a) a cash fee equal to 7% of the gross proceeds (excluding exercise price) to the Company resulting from the sale of the Units to its clients (the "Brimberg Fee"), (b) a warrant to purchase a number of shares equal to 10% of the number of Shares sold to its clients (the "Brimberg Warrant"), and (c) a non-accountable expense allowance equal to 1% of the gross proceeds (excluding exercise price) resulting from the sale of the Units sold to its clients (the "Expense Allocation"); provided, however, that Brimberg shall not receive the -------- ------- Brimberg Fee, the Brimberg Warrant, the Expense Allocation or any other compensation in connection with the Offering unless and until its clients purchase Units resulting in gross proceeds (excluding exercise price) to the Company in excess of $3.01 million. Unless specifically agreed otherwise in writing by the Company in its sole discretion, if the aggregate -2- proceeds (excluding exercise price) from the sale of the Units to Brimberg's clients exceed $7 million, the excess will be ignored for purposes of calculating the Brimberg Fee and the Expense Allocation, and the Shares included in the Units representing the excess will be ignored for purposes of calculating the number of shares subject to the Brimberg Warrant. Except as set forth in the next sentence, Brimberg will not be entitled to any fees, expense allocation, warrants or other compensation with respect to sales of Units to investors first invited to participate in the Offering by the Company independently of Brimberg, whether or not Brimberg subsequently engages in discussions with such investors (the "Company Identified Investors"). In addition to the Brimberg Fee, the Expense Allocation and the Brimberg Warrant, Brimberg will receive a cash fee of 1 1/2% of the gross proceeds (excluding exercise price) to the Company resulting from the Units sold in the Offering to Company Identified Investors. The Brimberg Fee shall be payable simultaneously with the respective Closing giving rise thereto. The Expense Allocation shall be payable, and the Brimberg Warrant shall be issued, at the final Closing. The Company reserves the right to terminate the Offering at any time in its sole discretion due to adverse market conditions or changes in the market price of its Common Stock. If the Company so terminates the Offering, then it will not have to pay any compensation to Brimberg other than compensation due to Brimberg as the result of any Closing (as defined below) and the Company Expenses (as defined in Exhibit D (the Offering Terms) to the Memorandum). The exercise prices of the Brimberg Warrant shall be based, pro rata, upon the exercise price of the Warrants issued to clients of Brimberg as part of the Units used to calculate the number of shares to be subject to the Brimberg Warrant. (e) The undersigned may not withdraw this Subscription Agreement or any amount paid pursuant thereto except as otherwise provided below. The Memorandum, this Subscription Agreement, the Registration Rights Agreement, the Confidentiality Agreement, the Warrants and the Brimberg Warrant are collectively referred to herein as the "Offering Documents." 2. Conditions. It is understood and agreed that this ---------- subscription is made subject to the following terms and conditions: (a) No Subscription Agreement shall be effective unless and until it is accepted by the Company. The Company may, in its sole discretion, reject this subscription in whole or in part for any or no reason. Unless this subscription is accepted prior to the Termination Date, this subscription shall be deemed rejected in whole. (b) At each Closing, the Placement Agent shall have received an opinion of Ropes & Gray, counsel to the Company, addressed to the Placement Agent on behalf of the Subscribers and dated the date of the Closing, with respect to the validity of the Shares and Warrants and the enforceability of the Subscription Agreement, Registration Rights Agreement and the Placement Agent Agreement between the Company and the Placement Agent, in form and substance reasonably satisfactory to the Placement Agent and its counsel (the "Placement Agent Agreement"). The Company hereby instructs such counsel to address such opinion to the Placement Agent on behalf of the Subscribers. (c) At the date of each Closing, the Placement Agent shall have been furnished such information, documents, certificates, and opinions as it may reasonably require -3- under the terms of the Placement Agent Agreement to evidence the accuracy, completeness, or satisfaction of the representations, warranties, covenants, agreements, and conditions herein contained or as it otherwise may reasonably request. (d) At the final Closing, the Company shall execute and deliver in favor of Brimberg, the Brimberg Warrant. (e) At or prior to each Closing, the Company shall execute and deliver a Registration Rights Agreement in favor of the Subscribers. 3. Representations and Warranties of the Company. The --------------------------------------------- Company represents and warrants to the Placement Agent, as of the date of the applicable Closing as follows (for purposes of this Paragraph 3, all references to the "Company" shall be deemed to include Boston Life Sciences, Inc. and all of its subsidiaries): (a) Organization. The Company is validly existing and in good standing under the laws of the State of Delaware with full power and authority to own, lease, license and use its properties and assets and to carry out the business in which it is engaged as described in the Memorandum. The Company is duly qualified to transact the business in which it is engaged as described in the Memorandum and is in good standing as a foreign corporation in every jurisdiction in which its ownership, leasing, licensing or use of property or assets or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the business, properties, results of operations, financial condition or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (b) Authorization of Agreements, Etc. The execution, delivery and performance by the Company of. this Subscription Agreement and the Registration Rights Agreement have been duly authorized by all requisite corporate action of the Company and each, upon execution and delivery thereof by the Company, will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, subject to bankruptcy, insolvency or similar laws affecting creditor's rights generally, and general principles of equity and except as the right to indemnification and contribution under the Registration Rights Agreement may be limited under applicable law. (c) Authorization of the Shares and Warrants. As of the date of the applicable Closing, the issuance and delivery of the Shares have been duly authorized by all requisite corporate action of the Company. As of the date of the applicable Closing, the execution, issuance and delivery of the Warrants have been duly authorized by all requisite corporate action of the Company and, when so executed, issued and delivered, the Warrants will be duly executed, issued and delivered, will constitute valid and legal obligations of the Company, free and clear of all liens, encumbrances and claims whatsoever, and will be enforceable as to the Company in accordance with their terms. The Shares and Warrants are not and will not be subject to preemptive or any other similar rights of the shareholders of the Company or others, in each case which rights shall not have been waived or exercised prior to the applicable Closing. -4- (d) Authorization of Warrant Shares. As of the date of the applicable Closing, the issuance, sale and delivery by the Company of the shares of Common Stock issuable upon conversion of the Warrants and the Brimberg Warrant (collectively the "Warrant Shares") have been duly authorized by all requisite corporate action of the Company, and have been duly reserved for issuance, and upon exercise of the Warrants and the Brimberg Warrant, as the case may be, and payment of the exercise price therefor, the Warrant Shares will be validly issued and outstanding, fully paid and nonassessable, free and clear of all liens, encumbrances and claims whatsoever, and are not subject to preemptive or any other similar rights of the shareholders of the Company or others which rights shall not have been waived or exercised prior to the applicable Closing. (e) Financial Statements. The financial statements included in the Memorandum fairly present in all material respects with respect to the Company the financial position, the results of operations, and the other information purported to be shown therein of the Company at the respective dates and for the respective periods to which they apply. Such financial statements (including the related notes) have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, and are in accordance with the books and records of the Company covered therein. Except as disclosed in the Memorandum or as has not resulted in a Material Adverse Effect, since September 30, 2001, there has not been (i) any change in the financial condition or earnings of the Company and its subsidiaries taken as a whole, (ii) any obligation, direct or contingent, incurred by the Company, except obligations in the ordinary course of business, (iii) any dividend or distribution of any kind declared, paid or made on the shares of capital stock, as applicable, of the Company, or (iv) any loss or damage (whether or not insured) to the physical property of the Company. In addition, since September 30, 2001, the Company has not defaulted on any payments of principal or interest on any outstanding debt obligations of the Company other than trade debt. (f) Capitalization. As of the date of the Memorandum, the authorized, issued and outstanding share capital of the Company is as set forth in the Memorandum. All issued and outstanding capital shares of the Company are validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any shareholder of the Company. All prior sales of securities of the Company were either registered under the Securities Act of 1933, as amended (the "Securities Act") and applicable state securities laws in the United States or exempt from such registration. (g) Preemptive Rights, Etc. Except for the Warrants and the Brimberg Warrant to be issued in connection with the Offering, and except as set forth in the Memorandum, there are not, nor will there be immediately after the Initial Closing or any subsequent Closing, any outstanding warrants, options, agreements, convertible securities, preemptive rights to subscribe for or other commitments pursuant to which the Company is, or may become, obligated to issue any capital stock or other securities of the Company, and the Offering will not cause any anti-dilution adjustments to such securities or commitments except as reflected in the Memorandum. Except as set forth in the Memorandum, the Company is not subject to any agreement, arrangement or understanding that would require it to repurchase any of its capital stock. -5- (h) Subsidiaries and Investments. Except as set forth in the Memorandum (including without limitation as disclosed in the Company's latest Annual Report on Form 10-K incorporated by reference therein), the Company does not own or control, directly or indirectly, any corporation, association or other entity. (i) Title. Except as set forth in the Memorandum, the Company has good and marketable title to all properties and assets owned by it free and clear of all liens, charges, encumbrances or restrictions, except such as would not have a Material Adverse Effect. All of the leases and subleases under which the Company is the lessor or sublessor of properties or assets or under which the Company holds properties or assets as lessee or sublessee are in full force and effect, and the Company is not in default of any of the terms or provisions of any of such leases or subleases where any such default would have a Material Adverse Effect. No material claim has been asserted by anyone adverse to rights of the Company as lessor, sublessor, lessee or sublessee under any of the leases or subleases mentioned above, or affecting or questioning the right of the Company to continue possession of the leased or subleased premises or assets under any such lease or sublease, except as would not have a Material Adverse Effect. (j) Proprietary Rights. Except as set forth in the Memorandum, the Company owns or possesses enforceable rights to use all patents, patent applications, trademarks, services marks, copyrights, trade secrets, processes or formulations used in the conduct of its business (the "Proprietary Rights"), except in each case as would not have a Material Adverse Effect. To the knowledge of the Company, the Company has not infringed and is not infringing upon the rights of others with respect to Proprietary Rights and no others have infringed or are infringing on the Proprietary Rights, except in each case as would not have a Material Adverse Effect. (k) Litigation. Except as set forth in the Memorandum, there is no material action, suit, investigation, customer complaint, claim or proceeding at law or in equity by or before any court, arbitrator, governmental instrumentality or other agency now pending or, to the best knowledge of the Company, threatened against the Company (nor is there any basis therefore known to the Company). The Company is not subject to any judgment, order, writ, injunction or decree of any federal, state or municipal court, government department, commission, board, bureau, agency or instrumentality, which if decided adversely to the Company or its subsidiaries would have a Material Adverse Effect. (l) Non-Defaults; Non-Contravention. The Company is not in violation of or default under, nor will the execution and delivery of this Subscription Agreement or any of the Offering Documents or consummation of the transactions contemplated herein or therein result in a violation of or constitute a default in the performance or observance of any obligation under, (i) the Certificate of Incorporation or bylaws of the Company (or other charter documents as the case may be), or (ii) any order, writ, injunction or decree of any court of the United States or any other applicable governmental department, commission, board, bureau, agency or instrumentality of the United States. In addition, the Company is not in violation of or default under any indenture, mortgage, contract or other agreement or instrument to which it is a party or by which it or its property is bound or affected which after notice, the lapse of time or both, would constitute a default under any of the foregoing, which in any such case would have a Material Adverse Effect. -6- (m) Taxes. The Company has filed all necessary federal, state and local tax returns which are required to be filed by it and all such returns are true and correct in all material respects. The Company has paid all taxes pursuant to such returns or pursuant to any assessments received by it or which it is obligated to withhold from amounts owing to any employee, creditor or third party. The Company has properly accrued all taxes required to be accrued. To the Company's knowledge, the tax returns of the Company are not currently the subject of an audit by any federal, state or local authority. The Company has not waived any statute of limitations with respect to taxes or agreed to any extension of time with respect to any material tax assessment or deficiency. (n) Compliance With Laws; Licenses, Etc. The Company is in compliance with all federal, state or local laws including in each case the laws of its jurisdiction of incorporation, ordinances, regulations and orders applicable to its business, except where non-compliance would not have a Material Adverse Effect. The Company has all licenses and permits and other governmental certificates, authorizations and permits and approvals (collectively, "Licenses") required by every federal, state or local, government or regulatory body for the operation of its business as currently conducted and the use of its properties, except where the failure to be licensed would not have a Material Adverse Effect. Except as would not have a Material Adverse Effect, the Licenses of the Company are in full force and effect, and no violations are or have been recorded in respect of any License and no proceeding is pending or threatened to revoke or limit any thereof. (o) Insurance. The Company maintains insurance with insurers of recognized financial responsibility of the types and in the amounts generally deemed adequate for its respective business and consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Company, against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect; since June 1975, the Company has not (i) had any insurance coverage canceled and (ii) to the best knowledge of the Company, been refused any insurance coverage sought or applied for; and the Company has no 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. (p) Labor Relations. No labor disturbance by the employees of the Company exists or to the best of the Company's knowledge, is imminent; and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, licensors, collaborators or subcontractors that might reasonably be expected to result in a Material Adverse Effect. No collective bargaining agreement exists with any of the Company's employees and, to the best of the Company's knowledge, no such agreement is imminent. (q) ERISA. Each "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof), of the Company, which are -7- now, or were in the past, maintained by the Company have been maintained in compliance with their terms and the provisions of applicable law, including, without limitation, ERISA and the Internal Revenue Code of 1986, as amended, except in each case where such non-compliance would not have a Material Adverse Effect. (r) Environmental. The operations of the Company with respect to any real property currently leased, owned or by any means controlled by the Company (the "Real Property") are in compliance in all material respects with all federal, state, and local laws, ordinances, rules, and regulations relating to occupational health and safety and the environment; the Company maintains all licenses, permits and authorizations necessary to operate under all such laws applicable to it; and there is no pending or, to the best knowledge of the Company, threatened, claim, litigation or any administrative agency proceeding, nor has the Company received any written or oral notice from any governmental entity or third party, that: (i) alleges a violation of any such laws by the Company; (ii) alleges that the Company is a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. [sect] 9601 et seq. ("CERCLA"), or any state superfund law; (iii) alleges possible contamination of the environment by the Company; or (iv) alleges possible contamination of the Real Property. The Company has not received any written or oral notice from any governmental entity or third party that any Real Property which is owned, leased or occupied by the Company has been designated as a Superfund site pursuant to CERCLA or otherwise designated as a contaminated site under applicable state or local law. (s) Internal Controls. The Company maintains 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 accountability for assets, (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 existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (t) Right of First Refusal. Except as set forth in the Memorandum, no preemptive right, right of first refusal granted by the Company or other similar rights exists with respect to the issuance of the Shares, Warrants and Brimberg Warrant by the Company. (u) Exemption from Registration. Assuming the accuracy of the information provided by the respective Subscribers in the Subscription Agreements and assuming that the Placement Agent has not taken any action or omitted to take any action such that the exemption provided by Section 4(2) of the Securities Act and Rule 506 thereunder is rendered unavailable to the Company, the offer and sale of the Units and the issuance of the Brimberg Warrant pursuant to the terms of this Agreement are exempt from the registration requirements of the Securities Act and the rules and regulations promulgated thereunder. (v) Accuracy of Disclosure. The information contained in the Offering Documents as of the date of the Memorandum does not contain, and as of each Closing, will not contain, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. -8- (w) Investment Company. The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), and neither the sale of the Units nor the transactions contemplated herein will cause the Company to become an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act. (x) Brokers. The Company is not a "broker" within the meaning of Section 3(a)(4) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or a "dealer" within the meaning of Section 3(a)(5) of the Exchange Act or required to be registered pursuant to Section 15(a) of the Exchange Act. (y) Miscellaneous. Neither the Company, nor, to the knowledge of the Company, any agent or other person acting on behalf of the Company, has, directly or indirectly, (i) used any Company funds for unlawful contributions, gifts, entertainment or other unlawful payment related to foreign or domestic political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from Company funds; (iii) failed to disclose fully any contribution made by the Company or made by any person acting on its behalf and of which the Company is aware in violation of law; (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (v) made any unlawful bribe, rebate, payoff, influence, kick-back or other unlawful payment. (z) Registration Rights. Other than as set forth in the Memorandum, no holder of the Company's securities has the right to require the Company to include such securities in the Registration Statement to be filed under Sections 2.1 of the Registration Rights Agreement. (aa) S-3 Eligibility. The Company is eligible to register the Shares and the Warrant Shares on Form S-3 with the Securities and Exchange Commission (the "SEC"). 4. Representations, Warranties and Covenants of the ------------------------------------------------ Subscriber. The undersigned hereby represents and warrants to, and agrees with, - ---------- the Company as follows, as of the date hereof and as of each applicable Closing: (a) The undersigned is an "Accredited Investor" as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act. Specifically the undersigned is (check appropriate items(s)): _____(i) A bank as defined in Section 3(a)(2) of the Securities Act, or a savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the Exchange Act; an insurance company as defined in Section 2(13) of the Securities Act; an investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of the Investment Company Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and -9- maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; an employee benefit plan within the meaning of ERISA, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either a bank, savings and loan association, insurance company, or registered advisor, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors. _____(ii) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act. _____(iii) An organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000. _____(iv) A director or executive officer of the Company. ______(v) A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his or her purchase exceeds $1,000,000. (California residents. please see Section 4(b) below.) _____(vi) A natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year. (California residents. please see Section 4(b) below.) ____(vii) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act (i.e., a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment). ___(viii) An entity in which all of the equity owners are accredited investors. (If this alternative is checked, the undersigned must identify each equity owner and provide statements signed by each demonstrating how each is qualified as an accredited investor.) (b) For California individuals: If the Subscriber is a California resident, such subscriber's investment in the Company will not exceed 10% of such Subscriber's net worth (or joint net worth with his spouse). (c) If a natural person, the undersigned is: a bona fide resident of the State contained in the address set forth on the signature page of this Subscription Agreement as the undersigned's home address; at least 21 years of age; and legally competent to execute this Subscription Agreement. If an entity, the undersigned is duly authorized to execute this Subscription Agreement and this Subscription Agreement constitutes the legal, valid and binding obligation of the undersigned enforceable against the undersigned in accordance with its terms. -10- (d) The undersigned has received, read carefully and is familiar with this Subscription Agreement and the Memorandum. Respecting the Company, the undersigned is familiar with the Company's business, plans and financial condition, the terms of the Offering and any other matters relating to the Offering; the undersigned has received all materials which have been requested by the undersigned; has had a reasonable opportunity to ask questions of the Company and its representatives; and the Company has answered all inquiries that the undersigned or the undersigned's representatives have put to it. The undersigned has had access to all additional information necessary to verify the accuracy of the information set forth in this Subscription Agreement and the Memorandum and any other materials furnished herewith, and has taken all the steps necessary to evaluate the merits and risks of an investment as proposed hereunder. (e) The undersigned or the undersigned's purchaser representative has such knowledge and experience in finance, securities, investments and other business matters so as to be able to protect the interests of the undersigned in connection with this transaction, and the undersigned's investment in the Company hereunder is not material when compared to the undersigned's total financial capacity. (f) The undersigned understandsthe various risks of an investment in the Company as proposed herein and can afford to bear such risks, including, without limitation, the risks of losing the entire investment. (g) The undersigned acknowledges that no market for the Shares, the Warrants or the Warrant Shares (collectively, the "Securities") presently exists and none may develop in the future and that the undersigned may find it impossible to liquidate the investment at a time when it may be desirable to do so, or at any other time. (h) The undersigned has been advised by the Company that none of the Securities have been registered under the Securities Act, that the Securities will be issued on the basis of the statutory exemption provided by Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering and under similar exemptions under certain state securities laws, that this transaction has not been reviewed by, passed on or submitted to any Federal or state agency or self-regulatory organization where an exemption is being relied upon, and that the Company's reliance thereon is based in part upon the representations made by the undersigned in this Subscription Agreement. The undersigned acknowledges that the undersigned has been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder on the transfer of the Securities. In particular, the undersigned agrees that no sale, assignment or transfer of any of the Securities shall be valid or effective, and the Company shall not be required to give any effect to such a sale, assignment or transfer, unless (i) the sale, assignment or transfer of such Securities is registered under the Securities Act, it being understood that such Securities are not currently registered for sale and that the Company has no obligation or intention to so register the Securities except as contemplated by the terms of the Offering Documents, or (ii) the Securities are sold, assigned or transferred in accordance with all the requirements and limitations of Rule 144 under the Securities Act, it being understood that Rule 144 is not available at the present time for the sale of the securities, or (iii) such sale, assignment or transfer is otherwise exempt from registration under the Securities Act. The undersigned further understands that an opinion of counsel and -11- other documents may be required to transfer such Securities. The undersigned acknowledges that the Securities shall be subject to a stop transfer order and the certificate or certificates evidencing each of the Securities shall bear the following or a substantially similar legend or such other legend as may appear on the forms of Securities and such other legends as may be required by state blue sky laws: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED." (i) The undersigned will acquire the Securities for the undersigned's own account (or for the joint account of the undersigned and the undersigned's spouse either in joint tenancy, tenancy by the entirety or tenancy in common) for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and has no present intention of distributing or selling to others any of such interest or granting any participation therein. (j) It never has been represented, guaranteed or warranted to the undersigned by any broker, the Company, the Placement Agent, any of the officers, directors, stockholders, partners, employees or agents of either the Company, the Placement Agent, or any other persons, whether expressly or by implication, that: (i) the Company or the undersigned will realize any given percentage of profits and/or amount or type of consideration, profit or loss as a result of the Company's activities or the undersigned's investment in the Company; or (ii) the past performance or experience of the management of the Company, or of any other person, will in any way indicate the predictable results of the ownership of the securities or of the Company's activities. (k) No oral or written representations have been made other than as stated in the Memorandum, and no oral or written information furnished to the undersigned or the undersigned's advisor(s) in connection with the Offering was in any way inconsistent with the information stated in the Memorandum. (l) The undersigned is not subscribing for the Units as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or presented at any -12- seminar or meeting, or any solicitation of a subscription by a person other than a representative of the Placement Agent or the Company with which the undersigned had a pre-existing relationship in connection with investments in securities generally. (m) The undersigned is not relying on the Company with respect to the tax and other economic considerations of an investment. (n) The undersigned understands that the net proceeds from all subscriptions paid and accepted pursuant to the Offering (after deduction for expenses of the Offering, including the fees and expenses payable to the Placement Agent) will be used in all material respects for the purposes set forth in the Memorandum. (o) Without limiting any of the undersigned's other representations and warranties hereunder, the undersigned acknowledges that the undersigned has reviewed and is aware of the risk factors described in the Memorandum. (p) The undersigned acknowledges that the representations, warranties and agreements made by the undersigned herein shall survive the execution and delivery of this Subscription Agreement, the purchase of the Units and the exercise of the Warrants. (q) The undersigned understands that the Placement Agent does not make any representations or warranties concerning the accuracy or completeness of any information relating to the Company or its operations, to be delivered to prospective investors in connection with the Offering. (r) The undersigned has consulted its or his own financial, legal and tax advisors with respect to the economic, legal and tax consequences of an investment in the Units and has not relied on the Memorandum or the Company, its officers, directors or professional advisors for advice as to such consequences. 5. Covenants of the Company. ------------------------ (a) Listing. The Company shall cause all Shares and Warrant Shares to be listed on Nasdaq by the date that Nasdaq rules require. (b) S-3 Eligibility. The Company will take all actions necessary to maintain its eligibility to register the resale of the Shares and the Warrant Shares on Form S-3 as contemplated by Section 2.1 of the Registration Rights Agreement until such time as the Shares and Warrant Shares no longer constitute Registrable Securities (as defined in the Registration Rights Agreement). 6. Indemnification. The undersigned acknowledges that the --------------- undersigned understands the meaning and legal consequences of the representations and warranties contained in Section 4 hereof, and agrees to indemnify and hold harmless the Company, the Placement Agent, and their respective partners, incorporators, officers, directors, partners, employees, agents and controlling persons of each thereof, past, present or future, from and against any and all loss, damage or liability due to or arising out of a breach of any such representation or warranty. -13- 7. Transferability. Neither this Subscription Agreement, nor --------------- any interest of the undersigned herein, shall be assignable or transferable by the undersigned in whole or in part except by operation of law. Any attempt to assign or transfer this agreement or any interest therein other than by operation of law shall be void. 8. Miscellaneous. ------------- (a) The Offering Documents and the exhibits thereto set forth the entire understanding of the parties with respect to the subject matter hereof, supersede all existing agreements among them concerning such subject matter, and may be modified only by a written instrument duly executed by the party to be charged. (b) Except as otherwise specifically provided herein, any notice or other communication required or permitted to be given hereunder shall be in writing and shall be mailed by certified mail, return receipt requested, or by Federal Express, Express Mail or similar overnight delivery or courier service or delivered (in person or by telecopy, telex or similar telecommunications equipment) against receipt to the party to whom it is to be given, (i) if to the Company, at the address set forth on the first page hereof, (ii) if to the undersigned, at the address set forth on the signature page hereof, or (iii) in either case, to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 8(b). Notice to the estate of any party shall be sufficient if addressed to the party as provided in this Section 8(b). Any notice or other communication given by certified mail shall be deemed given at the time of certification thereof, except for a notice changing a party address which shall be deemed given at the time of receipt thereof. Any notice given by other means permitted by this Section 8(b) shall be deemed given at the time of receipt thereof. (c) This Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto, the successors and assigns of the Company, and the permitted successors, assigns, heirs and personal representatives of the undersigned (including permitted transferees of the Securities). (d) The headings in this Subscription Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Subscription Agreement. (e) This Subscription Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (f) This Subscription Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to principles governing conflicts of law. (g) This Subscription Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a party to this Subscription Agreement (except as provided in Sections 6, 8(c) and 8(g)); provided, that the Placement Agent shall be entitled to rely on, and shall be a third party beneficiary of, the representations, warranties and agreements contained in this Subscription Agreement. -14- (h) The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of any federal court located in such Commonwealth in connection with any action or proceeding arising out of or relating to the Offering Documents, any document or instrument delivered pursuant to, in connection with or simultaneously with the Offering Documents, or a breach of any Offering Documents or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made in accordance with Section 8(b). Within 30 days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process. - 15 - IN WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement as of the day and year this subscription has been accepted by the Company as set forth below. Aggregate Dollar Amount of Subscription _____________________________________________ Print Name of Subscriber (NOTE: This is the name in which the Shares and Warrants shall be registered.) $_______________ By:_______________________________________ (Signature of Subscriber or Authorized Signatory) Social Security Number or other Taxpayer Identification Number: ____________________________________ Address: ____________________________________ If the Units will be held as joint tenants, tenants in common, or community property, please complete the following: ____________________________________ Print name of spouse or other co-subscriber ____________________________________ Signature of spouse or other co-subscriber ____________________________________ Print manner in which the Shares and Warrants will be held ____________________________________ Social Security Number [Please complete Section 4 for each Subscriber. [To be completed by the Company] ACCEPTED AS TO ___________ UNITS, REPRESENTING $____________ AGGREGATE DOLLAR AMOUNT OF OFFERING PRICE, WITH $___________ TO BE REFUNDED TO THE SUBSCRIBER BY: BOSTON LIFE SCIENCES INC. DATE: ____________ __, 2002 By:____________________________ Name: Title: -16- EX-99.2 4 dex992.txt REGISTRATION RIGHTS AGREEMENT Exhibit 99.2 REGISTRATION RIGHTS AGREEMENT ----------------------------- This Registration Rights Agreement (this "Registration Rights Agreement") ----------------------------- is made and entered into as of March 11, 2002, by Boston Life Sciences, Inc., a Delaware corporation (the "Company"), in favor of the holders of the Shares, ------- the Investor Warrants and the Placement Agent Warrants (each, as defined below) as set forth on the signature pages to this Agreement (the "Holders"). WITNESSETH ---------- WHEREAS, pursuant to that certain Confidential Private Placement Memorandum, dated January 16, 2002 (the "Memorandum"), the Company issued certain of its shares of common stock (the "Common Stock"), $.01 par value (each a "Share" and collectively the "Shares") and warrants to purchase shares of Common Stock (the "Investor Warrants") to the Holders; and WHEREAS, in connection with the offering of the Shares and Investor Warrants pursuant to the Memorandum, Brimberg & Co. L.P. (the "Placement Agent") provided services as the placement agent of the Shares and the Investor Warrants, and as partial compensation for such services, the Company issued to the Placement Agent warrants exercisable for shares of Common Stock (the "Placement Agent Warrants"); and WHEREAS, as of the date hereof, neither the Shares nor the shares of Common Stock issuable upon the exercise of the Investor Warrants or the Placement Agent Warrants are registered under the Securities Act (as defined below); and WHEREAS, the Company desires to grant, and the Holders desire to receive, certain rights with respect to the registration under the Securities Act of the Shares and the shares of Common Stock to be received upon the exercise of the Investor Warrants and the Placement Agent Warrants. NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and other good and valuable consideration, the parties hereto hereby agree as follows: Section 1. Definitions. ----------- Section 1.1 Definitions. As used in this Registration Rights Agreement, ----------- the following terms shall have the following meanings: "Affiliate" of any Person means any other Person who either, directly or --------- indirectly, is in control of, is controlled by, or is under common control with such Person. For purposes of this definition, the term "control" (including the terms "controlling," "controlled by" and under "common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Common Stock" means common stock of the Company, par value $.01 per ------------ share, or any other security of the Company into which such shares shall be converted or for which such shares shall be exchanged in any recapitalization, reorganization, merger, consolidation, share exchange or similar business combination transaction. "Exchange Act" means the United States Securities Exchange Act of 1934, as ------------ amended, and any successor federal statute, and the rules and regulations promulgated thereunder, all as the same shall be in effect from time to time. "Holder" means any party hereto who owns Registrable Securities and any ------ transferee of rights hereunder in accordance with Section 7.5 who owns Registrable Securities. "Material Development Condition" shall have the meaning set forth in ------------------------------ Section 2.5 hereof. "Notice Holder" means any Holder that provides written notice to the ------------- Company that such Holder desires to receive the information to which a Notice Holder is entitled in accordance with Section 2.4 of this Registration Rights Agreement for such time as such person remains a Holder. "Person" shall mean an individual, partnership, corporation, limited ------ liability company, joint venture, trust or unincorporated organization or a government or agency or political subdivision thereof or any other similar entity. "Prospectus" means any prospectus included in a Registration Statement ---------- (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement (including each preliminary or form of prospectus), with respect to the terms of the offering of any portion of the Registrable Securities covered by any Registration Statement, and all other amendments and supplements to the prospectus, including post-effective amendments, and all material incorporated by reference in such prospectus. "Registrable Securities" means the Shares and the Warrant Shares; ---------------------- provided, however, that such securities shall cease to be Registrable - -------- ------- Securities upon (i) any sale thereof pursuant to an effective Registration Statement, (ii) sale thereof under Rule 144, or (iii) such securities becoming freely saleable (assuming exercise of the Investor Warrants or the Placement Agent Warrants) pursuant to Rule 144(k) or, with respect to Shares and Warrant Shares held by an Affiliate (as that term is used in Rule 144) that is or becomes an Affiliate on account of any transaction other than the exercise of the Investor Warrants or the Placement Agent Warrants, such securities being freely saleable under Rule 144(k) had they not been held by such an Affiliate. For purposes of this Agreement, the number of Registrable Securities outstanding at any time shall be determined by adding (i) the number of shares of Common Stock outstanding which are Registrable Securities and (ii) the maximum number of shares of Common Stock -2- issuable pursuant to then convertible or exercisable securities which upon issuance would be Registrable Securities. "Registration Statement" means any Registration Statement, including the ---------------------- Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such Registration Statement, to be filed pursuant to the terms of this Registration Rights Agreement. "Rule 144" means Rule 144 promulgated by the SEC pursuant to the -------- Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule. "Rule 158" means Rule 158 promulgated by the SEC pursuant to the -------- Securities Act, as such Rule may be amended from time to time, or any, similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule. "SEC" means the Securities and Exchange Commission or its successors. --- "Securities Act" means the United States Securities Act of 1933, as -------------- amended, and any successor federal statute, and the rules and regulations thereunder, all as the same shall be in effect from time to time. "Underwriter" means a securities dealer who purchases any Registrable ----------- Securities as principal in an underwritten offering and not as part of such dealer's market-making activities. "Underwritten Offering" means a public offering in which Registrable --------------------- Securities are sold to an Underwriter for reoffering to the public pursuant to an effective Registration Statement. "Warrant Shares" means the shares of Common Stock to be issued upon -------------- exercise of the Investor Warrants and the Placement Agent Warrants. Section 2. Registration ------------ Section 2.1 Form S-3 Registration Requirements. The Company shall use ---------------------------------- its best efforts to file within ninety (90) days following the final Closing (as defined in the Memorandum), and use its best efforts to cause to become effective under the Securities Act, a registration statement on Form S-3 or, if Form S-3 is not then available, another appropriate form covering the resale of the Shares and the Warrant Shares, and shall take all action reasonably necessary to qualify the Shares and Warrant Shares under state "blue sky" laws as hereinafter provided; provided, however, that the Company shall not be -------- ------- required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject. Section 2.2 Piggyback Registration Requirements. If at any time or ----------------------------------- times after the date hereof the Company shall seek to register any shares of its Common Stock under the -3- Securities Act for sale to the public for its own account or on the account of others (except with respect to registration statements on Form S-4, S-8 or another form not available for registering the Registrable Securities for sale to the public), the Company will promptly give written notice thereof to all Holders. If within twenty (20) days after their receipt of such notice one or more of such Holders request in writing the inclusion of some or all of the Registrable Securities owned by them in such registration, the Company will include such Registrable Securities in such registration. In the case of the registration of shares of capital stock by the Company in connection with any Underwritten Offering, the selling Holders will enter into an underwriting agreement in form, scope and substance as is agreed upon by the Company and the managing underwriters. Also, in the case of the registration of shares of capital stock by the Company in connection with any underwritten offering, if the underwriter(s) determines that marketing factors require a limitation on the number of Registrable Securities to be offered, the Company shall not be required to register Registrable Securities of the Holders in excess of the amount, if any, of shares of the capital stock which the lead managing underwriter of such underwritten offering shall reasonably and in good faith agree to include in such offering in addition to any amount to be registered for the account of the Company and other security holders; provided, however, that if securities are being offered for the account of other persons or entities as well as the Company, absent a written agreement to the contrary with such other persons or entities which agreement exists as of the date of this Agreement, such reduction shall not represent a greater fraction of the number of Registrable Securities intended to be offered by the Holders than the fraction of similar reductions imposed on such other persons or entities (other than the Company). Notwithstanding anything herein to the contrary, during any period when Registrable Securities are already covered by an effective Registration Statement, the notice and piggyback rights granted in this Section 2.2 shall only be available with respect to such Registrable Securities for an underwritten public offering of the Company's securities. Section 2.3 Holder Lockup Agreements. Each Holder agrees, for any ------------------------ underwritten offering by the Company or its security holders to which the provisions of Section 2.2 above are applicable and the Company has complied with such provisions, that without the consent of the managing underwriter, it will not, for a period of 90 days following the effective date of the registration statement, directly or indirectly sell, offer to sell, grant any option for the sale of, or otherwise dispose of any common equity or securities convertible into common equity, except (i) for any Registrable Securities sold pursuant to such registration statement, and (ii) transfers to affiliates and partners of such Holder (each of whom shall have furnished to the Company and the managing underwriter their written agreement to be bound by this Section 2.3), provided that the executive officers and directors of the Company enter lockup agreements for the same period and on the same terms, except that such lockup agreements need not cover securities being sold in such offering. Section 2.4 Registration Procedures. The Company will keep the Holders ----------------------- advised in writing as to initiation of the registration required in Section 2.1 and, to the extent such Holders are participating therein, Section 2.2 hereof and as to the completion thereof. At its expense, the Company shall use its best efforts to: -4- (a) (i) prepare and file with the SEC such amendments, including post-effective amendments to each Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities until the Holder or Holders have completed the distribution described in such Registration Statement or such securities have ceased to be Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (including, among other things, as a result of any change or changes after the effective date of the Registration Statement in the plan of distribution contemplated by the Holders), and as so supplemented or amended to be filed pursuant to Rule 424 promulgated under the Securities Act (or any similar provisions then in force); (iii) respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and as promptly as possible provide each Notice Holder true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by each Registration Statement in accordance with the intended methods of disposition by the Holders as set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; (b) (i) furnish to each Notice Holder, and in the case of an Underwritten Offering, to the managing Underwriters, copies of all such documents to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Notice Holder(s) and their counsel and such managing Underwriters, if any, and (ii) cause its officers and directors to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Notice Holders and such Underwriters, if any, to conduct a reasonable due diligence investigation within the meaning of the Securities Act, subject in each case to Section 3(e) hereof; provided, that -------- such due diligence investigation shall, to the greatest extent possible, be coordinated on behalf of all Holders and the other parties entitled thereto by counsel to the Holders; and provided further, that the Company shall not be ---------------- required to disclose any information subject to the attorney-client or attorney work product privilege if and to the extent such disclosure would constitute a waiver of such privilege. (c) notify each Notice Holder (except in the case of (v), (vi), (vii) and (viii) below, in which case, the Company will notify Holders of Registrable Securities to be sold), and in the case of an Underwritten Offering, to the managing Underwriters, as promptly as possible (and in the case of (i), below, prior to such filing): (i) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed, provided, however, that in the case of a Prospectus or Prospectus supplement such notice shall be provided only to the extent such Prospectus or Prospectus supplement includes material differences from Prospectuses previously filed with the SEC (whether as part of such Registration Statement or otherwise); (ii) whenever the SEC comments in writing on such Registration Statement; -5- (iii) with respect to each Registration Statement or any post-effective amendment, when the same has become effective; (iv) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to each Registration Statement or Prospectus or for additional information; (v) of the issuance by the SEC of any stop order suspending the effectiveness of each Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings for that purpose; (vi) if at any time any of the representations and warranties of the Company contained in any agreement contemplated hereby in connection with the registration of Registrable Securities ceases to be true and correct in all material respects; (vii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (viii)of the occurrence of any event that makes any statement made in any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (d) use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment; provided, however, that the Company shall not be required to qualify generally - -------- ------- to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject; (e) furnish to each Holder of Registrable Securities to be sold, and in the case of an Underwritten Offering, to any managing Underwriters, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC; -6- (f) promptly deliver to each Holder of Registrable Securities to be sold, and in the case of an Underwritten Offering, to such Underwriters, without charge, as many copies of the Prospectus or Prospectuses as such Persons may reasonably request; (g) use commercially reasonable efforts to register or qualify or cooperate with the selling Holders, and in the case of an Underwritten Offering, any Underwriters and their counsel, in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder or Underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective until the Holder or Holders have completed the resale of such Registrable Securities and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be -------- ------- required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject; (h) cooperate with the selling Holders, and in the case of an Underwritten Offering, any managing Underwriters, to facilitate the timely preparation and delivery of certificates representing Registrable Securities being sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such managing Underwriters or selling Holders may request at least two business days prior to any sale of Registrable Securities pursuant to such Registration Statement; (i) except during a "blackout period" as defined in Section 2.5 below, upon the occurrence of any event that makes any statement made in any Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as promptly as reasonably practicable, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other document required to be filed in connection therewith so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (j) to cause all Registrable Securities relating to each Registration Statement to be listed on the securities exchange, quotation market or over-the-counter bulletin board on which the Common Stock is then listed; -7- (k) in the case of an Underwritten Offering, to enter into an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings and take all such other actions in connection therewith as may be reasonably requested by any managing Underwriters in order to expedite or facilitate the disposition of such Registrable Securities, and to: (i) make such representations and warranties customarily given to selling Holders in an Underwritten Offering and confirm the same if and when requested; (ii) obtain and deliver copies to the managing Underwriters, and to the extent customary in an Underwritten Offering, the selling Holders, of opinions of counsel to the Company and updates thereof addressed to the managing Underwriter, and if applicable, such Holders, in form, scope and substance reasonably satisfactory to any such managing Underwriters and a single counsel, if any, selected by a majority in interest of the selling Holders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and Underwriters; (iii) at the time of delivery of any Registrable Securities sold pursuant to an Underwritten Offering, obtain and deliver to the managing Underwriters "cold comfort" letters and updates thereof to the extent requested by the managing Underwriter; (iv) if an underwriting agreement is entered into, and such underwriting agreement contains indemnification provisions and procedures more favorable to the Underwriters than those set forth in Section 5 of this Registration Rights Agreement, provide such terms as are more favorable to the Underwriters to the selling Holders; and (v) deliver such documents and certificates as may be reasonably requested by the managing Underwriters, to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. (l) comply in all material respects with all applicable rules and regulations of the SEC and make generally available to its security holders an earnings statement covering a period of twelve (12) months beginning within three (3) months after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (m) subject to Section 3(e) hereof and upon reasonable notice, make available for inspection by the selling Holders or any representative of such Holders, and in the event of an Underwritten Offering, any Underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such Notice Holder or Underwriters (in any event, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its -8- subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Inspector in connection with each Registration Statement; provided, that such due diligence investigation shall, to the greatest extent - -------- possible, be coordinated on behalf of all Holders and the other parties entitled thereto by counsel to the Holders; and provided further, that the ---------------- Company shall not be required to disclose any information subject to the attorney-client or attorney work product privilege if and to the extent such disclosure would constitute a waiver of such privilege. Section 2.5 Material Development Condition. With respect to any ------------------------------ Registration Statement filed or to be filed pursuant to Section 2 hereof, if the Company determines that, in its good faith judgment, it would (because of the existence of, or in anticipation of, any acquisition or corporate reorganization or other transaction, financing activity, stock repurchase or other development involving the Company or any subsidiary, or the unavailability for reasons substantially beyond the Company's control of any required financial statements, or any other event or condition of similar significance to the Company or any subsidiary) be disadvantageous (a "Material Development Condition") to the Company for such a Registration Statement to become effective or to be maintained effective or for sales of Registrable Securities to continue pursuant to the Registration Statement, the Company shall, notwithstanding any other provisions of this Registration Rights Agreement, be entitled, upon the giving of a written notice (a "Delay Notice") to such effect to any Holder of Registrable Securities included or to be included in such Registration Statement, (i) to cause sales of Registrable Securities by such Holder pursuant to such Registration Statement to cease, (ii) to cause such Registration Statement to be withdrawn and the effectiveness of such Registration Statement terminated, and/or (iii) in the event no such Registration Statement has yet been filed, to delay filing any such Registration Statement, in each case until, in the good faith judgment of the Company, such Material Development Condition no longer exists (notice of which the Company shall promptly deliver to any Holder of Registrable Securities with respect to any such Registration Statement which has been filed). Notwithstanding the foregoing provisions of this Section 2.5, the Company shall be entitled to cause the cessation of sales under, or postpone, delay or withdraw the Registration Statement (collectively, a "blackout period") in respect of Material Development Conditions for not more than two blackout periods within any consecutive three hundred sixty (360) day period, provided that such blackout periods in the aggregate do not exceed sixty (60) days. Section 3. Holder Covenants. ---------------- Each Holder selling Registrable Securities pursuant to the exercise of registration rights hereby covenants and agrees that: (a) it will not sell any Registrable Securities under any Registration Statement until it has received notice from the Company that such Registration Statement and, if applicable, any post-effective amendments thereto have become effective; (b) it and its officers, directors and affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to a Registration Statement; -9- (c) by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 2.4(c)(iv), (v), (vi), (vii), and (viii), or Section 2.5 of this Registration Rights Agreement, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until the Holder is advised in writing by the Company that the use of the applicable Prospectus may be resumed; (d) The Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in each Registration Statement or as the Company otherwise reasonably requests, and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to each Registration Statement filed or prepared subsequent to the time that such reference ceases to be required; (e) other than any final Registration Statement or Prospectus, such Holder shall, and shall cause its Inspectors and other representatives to, keep any and all information received or obtained from the Company ("Confidential Information") pursuant to this Registration Rights Agreement confidential and shall not disclose any such Confidential Information unless (i) the disclosure of such Confidential Information is necessary to avoid or correct a material misstatement or material omission in a Registration Statement, (ii) the release of such Confidential Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is, in the reasonable opinion of counsel for such Holder, necessary or advisable in connection with any action, claim, suit or proceeding, directly involving or potentially involving such Holder and arising out of, based upon, relating to, or involving this Registration Rights Agreement or any transactions contemplated hereby or arising hereunder or (iv) such Confidential Information has been made generally available to the public other than through the acts of such Holder; provided, further, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Holder pursuant to clauses (ii) or (iii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (e)). If the basis of any potential disclosure of Confidential Information by a Holder is clause (i) of the prior sentence, such Holder shall, at least five (5) business days prior to any such disclosure, notify the Company in writing that it believes disclosure of such information is so required and the Company shall have five (5) business days from the date of such notice to either (a) disclose such information, or (b) exercise its right under Section 2.5 hereof to issue a Delay Notice whereby such information shall be kept confidential for the duration of the blackout period, or (c) notify such Holder in writing that after consultation with and based upon written advice from independent legal counsel, the Company believes that without the disclosure of such information such Registration Statement does not contain any untrue statement of a material fact -10- or omit to state a material fact necessary to make the statements therein not misleading and such Prospectus does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (f) Each Holder shall take such actions as are reasonably necessary to protect the confidentiality of such Confidential Information (if practicable), unless and until such Confidential Information has been made generally available to the public other than as a result of a breach of this Registration Rights Agreement. Section 4. Registration Expenses. --------------------- All fees and expenses of the Company and any Holder incident to the Company's performance of or compliance with this Registration Rights Agreement shall be borne by the Company, whether or not any Registration Statement is filed or becomes effective and whether or not any Registrable Securities are sold pursuant to any Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any securities exchange or market on which Registrable Securities are required hereunder to be listed and (B) in compliance with state securities or Blue Sky laws, including, without limitation, reasonable fees and disbursements of counsel for the selling Holders in connection with Blue Sky qualifications of the Registrable Securities and determination of the eligibility of the Registrable Securities for investment under the laws of such jurisdictions as the managing Underwriters shall request, if any); (ii) printing expenses, including, without limitation, expenses of printing initial certificates for Registrable Securities and of printing Prospectuses if the printing of Prospectuses is requested by the managing Underwriters, if any; (iii) messenger, telephone and delivery expenses incurred by the Company, (iv) reasonable fees and disbursements of counsel for the Company; (v) Securities Act liability insurance, if the Company so desires such insurance; (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Registration Rights Agreement; and (vii) all internal expenses of the Company incurred in connection with the consummation of the transactions contemplated by this Registration Rights Agreement, including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder (all such expenses being referred to herein as "Registration Expenses"); --------------------- provided, however, in no event shall Registration Expenses include any - -------- ------- underwriting discounts, commissions, or fees attributable to the sale of the Registrable Securities or any fees or disbursements of counsel for the Selling Holders or any accountants or other persons retained by the Holders in connection with the consummation of the transactions contemplated by this Registration Rights Agreement. Notwithstanding anything to the contrary in this Section 4, the Holders shall be responsible, in any Underwritten Offering, for all fees and expenses incurred by the Holders or any fees or expenses incurred by the Company to the extent that such Company-incurred expenses would not have been incurred but for the inclusion of such Holder's Registrable Securities in such Underwritten Offering. -11- Section 5. Indemnification and Contribution. -------------------------------- Section 5.1 Indemnification by the Company. The Company agrees to ------------------------------ indemnify to the fullest extent permitted by law, each Holder, each Person who controls any such Holder (within the meaning of either the Securities Act or the Exchange Act) and their respective directors and officers against any and all losses, claims, damages, liabilities (or actions or proceedings in respect thereof) and expenses (including reasonable attorneys' fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus (each as amended and/or supplemented, if the Company shall have furnished any amendments or supplements thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading; provided, that the Company shall not be -------- required to indemnify such Holder, such controlling Persons or their respective officers or directors for any losses, claims, damages, liabilities (or actions or proceedings in respect thereof) or expenses resulting from any such untrue statement or omission if such untrue statement or omission is made in reliance on and conformity with any information with respect to such Holder or the Underwriters furnished in writing to the Company by such Holder expressly for use therein; provided, further, that, in the case of an Underwritten Offering, -------- ------- the Company shall not be required to indemnify any Holder to the extent that any such loss, claim, damage, liability (or actions or proceedings in respect thereof) or expense arises out of or is based upon an untrue or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus if (i) having previously been furnished by or on behalf of the Company with copies of the final Prospectus, such Holder failed to send or deliver a copy of the final Prospectus with or prior to the delivery of written confirmation of the sale of the Registrable Securities by the Holder to the person asserting the claim from which such loss, claim, damage, liability (or actions or proceedings in respect thereof) or expense arises and (ii) the final Prospectus would have corrected in all material respects such untrue statement or alleged untrue statement or omission or alleged omission. In the case of an Underwritten Offering, the Company agrees to indemnify each Underwriter thereof, the officers and directors of such Underwriter, and each person who controls such Underwriter (within the meaning of either the Securities Act or Exchange Act) to the same extent as provided above with respect to the indemnification of Holders. Section 5.2 Indemnification by Holders. In connection with any -------------------------- registration in which any Holder is participating, such Holder agrees to indemnify the Company, its directors and officers who sign the Registration Statement, each person, if any, who controls (within the meaning of either the Securities Act or of the Exchange Act) the Company, each other Holder and any prospective Underwriters, as the case may be, and any of their respective affiliates, general partners, officers, employees, agents and controlling persons, to the same extent as the foregoing indemnity from the Company to such Holder, but only with respect to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any preliminary Prospectus. Notwithstanding the foregoing, each Holder shall not be liable for an amount in excess of the proceeds of sale of such Holder's Registrable Securities (less applicable underwriting discounts and commissions). -12- Section 5.3 Conduct of Indemnification Proceedings. In case any -------------------------------------- proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 5.1 or Section 5.2 of this Registration Rights Agreement, such person (hereinafter called the "indemnified party") shall promptly notify the person ----------------- against whom such indemnity may be sought (hereinafter called the "indemnifying ------------ party") in writing, and the indemnifying party, upon request of the indemnified - ----- party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party shall have been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the indemnified parties, such firm shall be designated in writing by all of the indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent will not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the third sentence of this Section 5.3, the indemnifying party agrees that the indemnifying party shall be liable for any settlement of any proceeding effected without the indemnifying party's written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not either have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes as an unconditional term thereof a release of such indemnified party from all liability on claims that are the subject matter of such proceeding. Section 5.4 Contribution. If the indemnification provided for in this ------------ Section 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 5, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such -13- proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 5.3, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5.4, no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities sold by such Holder pursuant to the offering that gave rise to such losses, claims, damages, liabilities or expenses. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. If indemnification is available under this Section 5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Sections 5.1 and 5.2 without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this Section 5.4. Section 6. Term of Registration Rights. --------------------------- The rights of Holders with respect to the registration rights granted pursuant to this Registration Rights Agreement shall remain in effect, subject to the terms hereof, so long as there are Registrable Securities issued and outstanding. Section 7. Miscellaneous. ------------- Section 7.1 Entire Agreement. This Registration Rights Agreement ---------------- contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Section 7.2 Notices. Any and all notices or other communications or ------- deliveries required or permitted to be provided pursuant to this Registration Rights Agreement shall be in writing and shall be deemed to have been received (a) upon hand delivery (receipt acknowledged) or delivery by telecopy or facsimile (with transmission confirmation report) at the address or number appearing on the books and records of the Company maintained for such -14- purpose (which shall initially be the address for any Holder set forth on the Company's stock or warrant register), (if not delivered on a business day or if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered on a business day after normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address on the books and records of the Company maintained for such purpose, or upon actual receipt of such mailing, whichever shall first occur. Any such person's address or number for notice hereunder may be changed to such other address or number as may be designated in writing hereafter, in the same manner, by such person. Section 7.3 Remedies. In the event of a breach by the Company, or by a -------- Holder, of any of their respective obligations under this Registration Rights Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Registration Rights Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Registration Rights Agreement. The Company and each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Registration Rights Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. Section 7.4 Amendment and Waivers. No provision of this Registration --------------------- Rights Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and Holders then owning at least 66 2/3% of the Registrable Securities or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Registration Rights Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Notwithstanding the foregoing, no such amendment shall be effective to the extent that it applies to less than all of the Holders (with no amendment to this sentence being effective unless consented to by each affected Holder). The Company shall not offer or pay any consideration to a Holder for consenting to such an amendment or waiver unless the same consideration is offered to each Holder and the same consideration is paid to each Holder which consents to such amendment or waiver. Section 7.5 Successors and Assigns. This Registration Rights Agreement ---------------------- shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The rights of each Holder hereunder, including the right to have the Company register for resale Registrable Securities in accordance with the terms of this Registration Rights Agreement, shall be assignable by each Holder together with the Registrable Securities to which such rights relate if: (i) the Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within 90 days after such assignment, (ii) the Company is within 90 days after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned, (iii) following such -15- transfer or assignment, the further disposition of such securities by the transferee or assignee is restricted under the Securities Act or applicable state securities laws, and (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this Section 7.5, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions of this Registration Rights Agreement. Section 7.6 No Third-Party Beneficiaries. This Registration Rights ---------------------------- Agreement is intended for the benefit of the Company and the holders of the Shares, the Investor Warrants, the Placement Agent Warrants and the Warrant Shares and their respective permitted successors and assigns and the other persons specified in Section 5 and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Section 7.7 Cumulative Remedies. The remedies provided herein are ------------------- cumulative and not exclusive of any remedies provided by law. Section 7.8 Severability. If any term, provision, covenant or ------------ restriction of this Registration Rights Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. Section 7.9 Governing Law. This Registration Rights Agreement shall be ------------- governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to principles governing conflicts of law. Section 7.10 Consent to Jurisdiction; Service of Process. The parties ------------------------------------------- hereto irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of any federal court located in such Commonwealth in connection with any action or proceeding arising out of or relating to this Registration Rights Agreement, any document or instrument delivered pursuant to, in connection with or simultaneously with this Registration Rights Agreement, or a breach of this Registration Rights Agreement or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made in accordance with Section 7.2. Within 30 days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process. Section 7.11 Counterparts. This Agreement may be signed in counterparts ------------ with the same effect as if both parties had signed one and the same instrument. -16- IN WITNESS WHEREOF, the Company has duly executed this Registration Rights Agreement as of the date first written above. PLACEMENT AGENTS: BRIMBERG & CO., L.P. By: /s/ Frank Mlynarczyk ------------------------ Name: Frank Mlynarczyk Title: Chief Operating Officer BOSTON LIFE SCIENCES, INC. By: /s/ Joseph P. Hernon ------------------------ Name: Joseph P. Hernon Title: Executive Vice President and Chief Financial Officer HOLDERS: Name of Holder: By:_________________________________ Name: Title: -17- EX-99.3 5 dex993.txt FORM OF WARRANT TO PURCHASE COMMON STOCK Exhibit 99.3 NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. BOSTON LIFE SCIENCES, INC. Form of Warrant to Purchase --------------------------- Common Stock ------------ No. BLSI - [INSERT NUMBER] [INSERT NUMBER] Shares FOR VALUE RECEIVED, BOSTON LIFE SCIENCES, INC., a Delaware corporation (the "Company"), hereby certifies that [INSERT NAME], or its permitted assigns, is entitled to purchase from the Company, at any time or from time to time, commencing on March 11, 2002 (the "Initial Exercise Date"), [INSERT NUMBER] fully paid and non-assessable shares of the Common Stock, $.01 par value per share, of the Company. This Warrant shall expire at 5:00 P.M., New York City time, on March 11, 2007 (the "Termination Date"), and is exercisable for [INSERT NUMBER] fully paid and non-assessable shares of the Common Stock, $.01 par value per share, of the Company for an aggregate purchase price of [INSERT NUMBER] computed on the basis of $2.75 per share. Hereinafter, (i) said Common Stock, together with any other equity securities which may be issued by the Company with respect thereto or in substitution therefor, is referred to as the "Common Stock", (ii) the shares of Common Stock purchasable hereunder or under any other Warrant (as hereinafter defined) are referred to as the "Warrant Shares", (iii) the aggregate purchase price payable for the Warrant Shares hereunder is referred to as the "Aggregate Warrant Price", (iv) the price payable for each of the Warrant Shares hereunder is referred to as the "Per Share Warrant Price", (v) this Warrant and all warrants hereafter issued in exchange or substitution for this Warrant are referred to as the "Warrants" and (vi) the holder of this Warrant is referred to as the "Holder" and the holder of this Warrant and all other Warrants or Warrant Shares issued upon the exercise of any Warrant are referred to as the "Holders"). The Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant Price is subject to adjustment as hereinafter provided; in the event of any such adjustment, the number of Warrant Shares shall be adjusted by dividing the Aggregate Warrant Price by the Per Share Warrant Price in effect immediately after such adjustment. -1- 1. Exercise of Warrant ------------------- (a) This Warrant may be exercised, in whole at any time or in part from time to time, commencing on the Initial Exercise Date and prior to 5:00 P.M., New York City time, on the Termination Date, by the Holder by the surrender the original copy of this Warrant (with the election to exercise form at the end hereof fully completed and duly executed) to the Company at the address set forth in Subsection 9(a) hereof (an "Exercise"), together with proper payment of the Aggregate Warrant Price, or the proportionate part thereof if this Warrant is exercised in part. Payment for the Warrant Shares shall be made by certified or official bank check payable to the order of the Company. (b) Upon each Exercise of the Holder's rights to purchase Warrant Shares, the Holder shall be deemed to be the holder of record of the Warrant Shares issuable upon such Exercise, notwithstanding that the transfer books of the Company shall then be closed or certificates representing such Warrant Shares shall not then have been actually delivered to the Holder. If this Warrant is exercised in part, this Warrant must be exercised for a number of whole shares of Common Stock and the Holder is entitled to receive a new Warrant covering the Warrant Shares which have not been exercised and setting forth the proportionate part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon surrender of this Warrant, the Company will (i) issue a certificate or certificates in the name of the Holder for the largest number of whole shares of Common Stock to which the Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of any fractional shares of Common Stock to which the Holder shall be entitled, pay to the Holder cash in an amount equal to the fair value of such fractional shares (determined in such reasonable manner as the Company shall determine), and (ii) deliver the other securities and properties receivable upon the Exercise of this Warrant, if any, or the proportionate part thereof if this Warrant is exercised in part, pursuant to the provisions of this Warrant. 2. Reservation of Warrant Shares; Listing. The Company agrees that, -------------------------------------- prior to the expiration of this Warrant, the Company will at all times (a) have authorized and in reserve, and will keep available, solely for issuance or delivery upon the Exercise of this Warrant, the maximum amount of shares of Common Stock and other securities and properties as from time to time shall be receivable upon the Exercise of this Warrant, free and clear of all restrictions on sale or transfer, except for the restrictions on sale or transfer set forth in the Securities Act of 1933, as amended (the "Act"), and restrictions created by or on behalf of the Holder, and free and clear of all preemptive rights and rights of first refusal; and (b) cause the Warrant Shares to be listed on the securities exchange, quotation market or over-the-counter bulletin board on which the Common Stock is then listed. 3. Adjustments. ----------- (a) In case the Company shall hereafter (i) pay a dividend or make a distribution on its capital stock in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock into a great number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common Stock any shares of capital stock of the Company, the Per Share Warrant Price shall be adjusted to be equal to a fraction, the numerator of which shall be the Aggregate Warrant Price and the denominator of which shall be the number of shares of Common Stock and/or other capital stock of the Company which he would have owned immediately following such action had such Warrant been exercised immediately prior thereto. An adjustment made pursuant to this subsection shall become effective immediately after the record date in the case of a dividend or distribution and -2- shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. (b) If the Company at any time or from time to time makes, or fixes a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company other than shares of Common Stock, in each such event provision shall be made so that the Holder receives upon Exercise of this Warrant, in addition to the number of shares of Common Stock receivable thereupon, the amount of other securities of the Company which the Holder would have received had this Warrant been exercised on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the Exercise date, retained such securities receivable by the Holder as aforesaid during such period, subject to all other adjustments called for during such period under this Section 3 with respect to the rights of the Holder or with respect to such other securities by their terms. (c) In case of any capital reorganization, reclassification or similar transaction (except a transaction provided for in Section 3(a)), any consolidation or merger to which the Company is a party, any sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety for consideration consisting primarily of securities, or any statutory exchange of securities with another corporation (including any exchange effected in connection with a merger of a third corporation into the Company), the Holder shall have the right thereafter to receive on the Exercise of this Warrant the kind and maximum amount of securities, cash or other property which the Holder would have owned or have been entitled to receive immediately after such transaction had this Warrant been exercised immediately prior to the effective date of such transaction and in any such case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in this Section 3 with respect to the rights and interests thereafter of the Holder of this Warrant to the end that the provisions set forth in this Section 3 shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares or other securities or property thereafter deliverable on the Exercise of this Warrant. The above provisions of this subsection shall similarly apply to successive transactions of the type described in this subsection. The issuer of any shares of stock or other securities or property thereafter deliverable on the Exercise of this Warrant shall be responsible for all of the agreements and obligations of the Company hereunder, and the Company shall ensure that such issuer executes an agreement with the Holder providing that the Holder has the rights thereafter to receive upon Exercise of this Warrant such shares, securities or property. (d) No adjustment in the Per Share Warrant Price shall be required unless such adjustment would require an increase or decrease of at least $0.05 per share of Common Stock; provided, however, that any adjustments -------- ------- which by reason of this subsection are not required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, further, -------- ------- however, that adjustments shall be required and made in accordance with the provisions of this Section 3 (other than this subsection) not later than such times as may be required in order to preserve the tax-free nature of a distribution to the Holder of this Warrant or the Holder of Common Stock issuable upon the Exercise hereof. All calculations under this Section 3 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. (e) Upon the occurrence of each adjustment or readjustment of the Per Share Warrant Price pursuant to this Section 3, the Company, at its expense, promptly shall compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish -3- to the Holder a certificate executed by an officer of the Company setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of the Holder, furnish or cause to be furnished to the Holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Per Share Warrant Price at the time in effect, and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon Exercise of this Warrant. (f) In case at any time the Company shall propose to: (i) pay any dividend or make any distribution on shares of Common Stock in shares of Common Stock or make any other distribution (other than regularly scheduled cash dividends which are not in a greater amount per share than the most recent such cash dividend) to all holders of Common Stock; (ii) issue any rights, warrants, or other securities to all holders of Common Stock entitling them to purchase any additional shares of Common Stock or any other rights, warrants, or other securities; (iii) effect any transaction described in described in Section 3(c) hereof; (iv) effect any liquidation, dissolution, or winding-up of the Company; (v) take any other action which would cause an adjustment to the Per Share Warrant Price; then, and in any one or more of such cases, the Company shall give written notice thereof, to the Holder at the Holder's address as it shall appear on the books of the Company, at least 15 days prior to (i) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such dividend, distribution, rights, warrants, or other securities are to be determined, (ii) the date on which any such transaction described in Section 3(c), liquidation, dissolution, or winding-up is expected to become effective, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange their shares for securities or other property, if any, deliverable upon such transaction, liquidation, dissolution, or winding-up, or (iii) the date of such other action which would require an adjustment to the Per Share Warrant Price. (g) If, as a result of an adjustment made pursuant to this Section 3, the Holder of any Warrant thereafter surrendered for Exercise shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a written notice to the Holder of any Warrant promptly after such adjustment) shall determine the allocation of the adjusted Per Share Warrant Price between or among shares or such classes of capital stock or shares of Common Stock and other capital stock. 4. Fully Paid Stock; Taxes. The Company covenants that all shares of ----------------------- Common Stock are validly authorized and, if and when this Warrant is exercised in whole or in part in accordance with the terms hereof, the shares of Common Stock issued upon such Exercise, upon receipt by the Company of the full Per Share Warrant Price therefor, shall be validly issued, fully -4- paid, nonassessable, and will not be issued in violation of any preemptive rights or other rights of stockholders, and the Company will take all such actions as may be necessary to assure that the par value or stated value, if any, per share of the Common Stock is at all times equal to or less than the then Per Share Warrant Price. The Company further covenants and agrees that it will pay, when due and payable, any and all Federal and State stamp, original issue or similar taxes which may be payable in respect of the issue of any Warrant Share or any certificate thereof. 5. Registration Under Securities Act of 1933. The Holder is entitled ----------------------------------------- to the benefit of certain registration rights with respect to the Warrant Shares, as provided in the Registration Rights Agreement, dated as of March 8, 2002, between the Company, the Holder and the other parties thereto ("Registration Rights Agreement"). 6. Limited Transferability. The Holder acknowledges that it has been ------------------------ advised by the Company that neither this Warrant nor the Warrant Shares have been registered under the Act, that this Warrant is being or has been issued and the Warrant Shares may be issued on the basis of the statutory exemption provided by Section 4(2) of the Act or Regulation D promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering. The Holder acknowledges that it has been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Act and the rules and regulations thereunder on the transfer of securities, as well as the similar restrictions of applicable state law. In particular, the Holder agrees that no sale, assignment or transfer of this Warrant or the Warrant Shares issuable upon Exercise hereof shall be valid or effective, and the Company shall not be required to give any effect to any such sale, assignment or transfer, unless (i) the sale, assignment or transfer of this Warrant or such Warrant Shares is registered under the Act, it being understood that neither this Warrant nor such Warrant Shares are currently registered for sale and that the Company has no obligation or intention to so register this Warrant and no obligation to register such Warrant Shares except as specifically provided in the Registration Rights Agreement, or (ii) this Warrant or such Warrant Shares are sold, assigned or transferred in accordance with all the requirements and limitations of Rule 144 under the Act, as supported by an opinion of counsel to the Holder, reasonably satisfactory to the Company and its counsel, it being understood that Rule 144 is not available at the time of the original issuance of this Warrant for the sale of this Warrant or such Warrant Shares and that there can be no assurance that Rule 144 sales will be available at any subsequent time, or (iii) such sale, assignment, or transfer is otherwise exempt from registration under the Act, as supported by an opinion of counsel to the Holder, reasonably satisfactory to the Company and its counsel. The Company may treat the registered Holder of this Warrant as he or it appears on the Company's books at any time as the Holder for all purposes. All warrants issued upon the transfer or assignment of this Warrant will be dated the same date as this Warrant, and all rights of the holder thereof shall be identical to those of the Holder. This Warrant may be exchanged, at the option of the Holder thereof, for another Warrant, or other Warrants of different denominations, of like tenor and representing in the aggregate the right to purchase a like number of Warrant Shares (or portions thereof), upon surrender to the Company. 7. Loss, Etc., of Warrant. Upon receipt of evidence satisfactory to ---------------------- the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, the Company shall execute and deliver to the Holder a new Warrant of like date, tenor and denomination. 8. Warrant Holder Not Stockholder. Except as otherwise provided ------------------------------ herein, this Warrant does not confer upon the Holder any right to vote or to consent to or receive notice as a -5- stockholder of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a stockholder, prior to the Exercise hereof. 9. Communication. No notice or other communication under this Warrant ------------- shall be effective unless in writing; such notice shall be deemed given on the same day if sent by hand; after three (3) business days (Saturdays, Sundays and bank or other public holidays excluded) if sent by certified mail, return receipt requested; after one day if sent by reputable overnight courier service; and if sent by telex upon receipt of the answer back signal; or if by facsimile upon receipt of the confirmation slip showing completion of the transmission, addressed as follows: (a) to the Company, at 137 Newbury Street, 8th Floor, Boston, MA 02116 or other address as the Company has designated in writing to the Holder, or (b) to the Holder, at [INSERT ADDRESS]or other such address as the Holder has designated in writing to the Company. 10. Headings. The headings in this Warrant have been inserted as a -------- matter of convenience and shall not affect the construction hereof. 11. Applicable Law. This Warrant shall be construed in accordance with -------------- the laws of the Commonwealth of Massachusetts applicable to contracts made and performed within such Commonwealth, without regard to principles governing conflicts of law. 12. Legend. Unless registered, the Warrant Shares issued upon Exercise ------ of this Warrant shall be subject to a stop transfer order and the certificate or certificates evidencing such Warrant Shares shall bear substantially the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED." 13. Consent to Jurisdiction. The parties hereto irrevocably consent to ----------------------- the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of any federal court located in such Commonwealth in connection with any action or proceeding arising out of or relating to this Warrant, any document or instrument delivered pursuant to, in connection with or simultaneously with this Warrant, or a breach of this Warrant or any such document or instrument. In any such action or proceeding, each party hereto waives personal service of any summons, complaint or other process and agrees that service thereof may be made in accordance with Section 9(a). Within 30 days after such service, or such other time as may be mutually agreed upon in writing by the attorneys for the parties to such action or proceeding, the party so served shall appear or answer such summons, complaint or other process. -6- 14. Miscellaneous. ------------- (a) No course of dealing and no delay or omission on the part of the Holder in exercising any right or remedy shall operate as a waiver thereof or otherwise prejudice the Holder's rights, powers or remedies. No right, power or remedy conferred by this Warrant upon the Holder shall be exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise, and all such remedies may be exercised singly or concurrently. (b) This Warrant may be amended only by a written instrument executed by the Company and the Holder hereof. Any amendment shall be endorsed upon this Warrant, and all future Holders shall be bound thereby. -7- IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its President and attested to by its Secretary. BOSTON LIFE SCIENCES, INC. By: /s/ S. David Hillson ---------------------- Name: S. David Hillson Title: President ATTEST: /s/ Joseph P. Hernon - ----------------------- Name: Joseph P. Hernon Title: Secretary -8- To: Boston Life Sciences, Inc. 137 Newbury Street, 8th Floor Boston, MA 02116 ELECTION TO EXERCISE The undersigned hereby exercises his or its rights to purchase _______Warrant Shares covered by the within Warrant, and tenders payment herewith in the aggregate amount of $ _______ by certified or official bank check in accordance with the terms thereof, and requests that certificates for such securities be issued in the name of, and delivered to: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ (Print Name, Address and Social Security or Tax Identification Number) and, if such number of Warrant Shares shall not be all the Warrant Shares covered by the within Warrant, that a new Warrant for the balance of the Warrant Shares covered by the within Warrant be registered in the name of, and delivered to, the undersigned at the address stated below. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ (Print Name, Address and Social Security or Tax Identification Number) -9- In connection with such exercise, the undersigned hereby represents and warrants to, and agrees with, the Company, as of the date hereof that the undersigned is an "Accredited Investor" as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended. Dated:_________________ Name:_________________ (Print) Address:____________________________________________________________ ______________________ (Signature) ______________________ (Signature Guarantee) ______________________ (Signature Guarantee) -10- ASSIGNMENT ---------- FOR VALUE RECEIVED, ____________ hereby sells, assigns and transfers unto ______________________the within Warrant and all rights evidenced thereby, and does irrevocably constitute and appoint ____________________________, attorney, to transfer said Warrant on the books of Boston Life Sciences, Inc. Dated:__________________ Signature:__________________ Address: __________________ __________________ -11- PARTIAL ASSIGNMENT ------------------ FOR VALUE RECEIVED, ________________ hereby assigns and transfers unto ________________________ the right to purchase ___________ shares of the Common Stock, par value $.01 per share, of Boston Life Sciences, Inc. covered by the within Warrant, and a proportionate part of said Warrant and the rights evidenced thereby, and does irrevocably constitute. and appoint ____________________________, attorney, to transfer that part of said Warrant on the books of Boston Life Sciences, Inc. Dated:__________________ Signature:__________________ Address: __________________ __________________ -12- EX-99.4 6 dex994.txt PRESS RELEASE ISSUED ON MARCH 11, 2002 Exhibit 99.4 BOSTON LIFE SCIENCES COMPLETES $3.4 MILLION COMMON STOCK PRIVATE PLACEMENT March 12, 2002 Boston, MA--Boston Life Sciences, Inc. (NASDAQ: BLSI) announced today that it has completed a private placement of $3.4 million in common stock with a small group of individual and institutional investors. The Company's CEO and President, David Hillson commented, "This relatively modest equity financing, completed at a market based price, will provide additional financial resources to fully support our clinical trial programs planned for 2002." Under the terms of the financing, the Company issued 1,599,568 shares of common stock at a purchase price of $2.15 per share to the investors. Warrants to purchase a total of 399,892 shares of common stock were also issued to the investors which are exercisable to purchase shares of common stock at $2.75 per share through March 11, 2007. Brimberg & Co. L.P. acted as placement agent with respect to the offering. The Company is obligated to file a registration statement covering the resale of the common stock issued in the financing, including shares issuable upon exercise of the warrants, within 90 days of closing. For additional information about the financing, interested parties should read the current report on Form 8-K to be filed by the Company with the Securities and Exchange Commission. BLSI is developing novel diagnostics and therapeutics for Parkinson's Disease (PD) and Attention Deficit Hyperactivity Disorder (ADHD) as well as treatments for cancer, autoimmune disease, and central nervous system disorders. BLSI's products in development include: ALTROPANE(TM) and FLUORATEC(TM) radioimaging agents for the diagnosis of PD and ADHD; Troponin I, a naturally-occurring anti- angiogenesis factor for the treatment of solid tumors; AF-1 and Inosine, nerve growth factors for the treatment of acute and chronic CNS disorders; novel therapies for the treatment of PD and ADHD; and transcription factors that may control the expression of molecules associated with autoimmune disease and allergies. Statements made in this press release other than statements of historical fact represent forward-looking statements. Such statements include, without limitation, statements regarding expectations or beliefs as to future results or events, such as the expected timing and results of clinical trials, discussions with regulatory agencies, schedules of IND, NDA and all other regulatory submissions, the timing of product introductions, the possible approval of products, and the market size and possible advantages of the Company's products. All such forward-looking statements involve substantial risks and uncertainties, and actual results may vary materially from these statements. Factors that may affect future results include: the availability and adequacy of financial resources, the ability to obtain intellectual property protection, delays in the regulatory or development processes, results of scientific data from clinical trials, the outcome of discussions with potential partners, regulatory decisions, market acceptance of the Company's products, and other possible risks and uncertainties that have been noted in reports filed by the Company with the Securities and Exchange Commission, including the Company's Annual Report on Form 10-K. For further information, please contact: Corporate Joseph Hernon Chief Financial Officer Boston Life Sciences, Inc. 617.425.0200 jhernon@bostonlifesciences.com -----END PRIVACY-ENHANCED MESSAGE-----