Attached files
| file | filename |
|---|---|
| S-1/A - Cellectar Biosciences, Inc. | v171998_s1a.htm |
| EX-23.2 - Cellectar Biosciences, Inc. | v171998_ex23-2.htm |
| EX-10.46 - Cellectar Biosciences, Inc. | v171998_ex10-46.htm |
Execution
Version
CONSENT AND AMENDMENT
AGREEMENT
CONSENT AGREEMENT (this “Agreement”),
dated as of January 21, 2010, by and among Novelos Therapeutics, Inc. (the
“Company”) and the holders set forth on the signature pages affixed hereto (each
such holder, a “Consenting Holder” and, collectively, the “Consenting
Holders”).
Recitals
A. The
Company and Purdue Pharma L.P. (“Purdue”) entered into a Securities Purchase
Agreement, dated February 11, 2009 (the “Purchase Agreement”), pursuant to which
the Company issued to Purdue (i) 200 shares of the Company’s Series E
Convertible Preferred Stock, par value $0.00001 per share (the “Series E
Preferred Stock”), convertible into an aggregate of 15,384,615 shares (the
“Purdue Conversion Shares”) of the Company’s common stock, par value $0.00001
per share (the “Common Stock”), and (ii) warrants to purchase an aggregate of up
to 9,230,769 shares (the “Purdue Warrant Shares”) of Common Stock (subject to
adjustment).
B. In
connection with the transactions contemplated by the Purchase Agreement, the
other Consenting Holders entered into a Consent and Agreement to Exchange, dated
February 10, 2009 (the “Exchange Agreement”), pursuant to which, among other
things, (i) such Consenting Holders exchanged certain previously issued
securities of the Company for an aggregate of 445.442875 shares of Series E
Preferred Stock convertible into an aggregate of 34,264,831 shares (the “Other
Conversion Shares”) of Common Stock and (ii) the Company and such Consenting
Holders agreed to amend the terms of existing warrants to acquire an aggregate
of up to 11,865,381 shares (the “Other Warrant Shares” and, together with the
Purdue Warrant Shares, the “Warrant Shares”) of Common Stock (subject to
adjustment).
C. In
connection with the transactions contemplated by the Purchase Agreement and the
Exchange Agreement, the Company and the Consenting Holders entered into a
Registration Rights Agreements, dated February 11, 2009 (the “Registration
Rights Agreement”), pursuant to which the Company agreed to provide the
Consenting Holders with certain registration rights with respect to the Purdue
Conversion Shares, the Purdue Warrant Shares, the Other Conversion Shares (less
12,000,000 shares which had previously been registered) and the Other Warrant
Shares (collectively, the “Registrable Securities”).
D. On
September 15, 2009, the Company filed a registration statement on Form S-1 (file
no. 333-161922) (the “Registration Statement”) with the Securities and Exchange
Commission (the “Commission”) seeking to register the Registrable Securities for
resale or other disposition by the Consenting Holders pursuant to the Securities
Act of 1933, as amended (the “Act”).
E. By
letter, dated October 8, 2009 (the “First Comment Letter”), the staff of the
Commission (the “Staff”) requested that the Company advise the Staff as to the
Company’s basis for determining that the resale or disposition of the
Registrable Securities by the Consenting Holders as contemplated by the
Registration Statement was eligible to be made on a shelf basis under Rule
415(a)(1)(i).
F. In
response to the comments raised by the Staff in the First Comment Letter, on
December 7, 2009, the Company filed Amendment No. 1 to the Registration
Statement (the “First Amendment”) and submitted a response letter to the Staff
in which, among other things, the Company set forth its analysis of its ability
to use Rule 415(a)(1)(i) to effect the registration of the Registrable
Securities.
G. By
letter, dated December 29, 2009 (the “Second Comment Letter”), the Staff advised
the Company that the Staff disagreed that the Registrable Securities were
eligible to be registered on a shelf basis pursuant to Rule
415(a)(1)(i).
H. Although
the Company and the Consenting Holders believe that the Staff’s interpretation
of Rule 415 as set forth in the First Comment Letter and the Second Comment
Letter is incorrect, they believe it is in their mutual best interest to resolve
the Staff’s comments by limiting the number of shares of Common Stock covered by
the Registration Statement.
I.
Certain of the
Consenting Holders constitute the “Requisite Holders” referenced in the
Registration Rights Agreement and defined in the Certificate of Designations,
Preferences and Rights of the Series E Preferred Stock.
In consideration of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intended to be
legally bound, the parties hereto hereby agree as follows (with capitalized
terms used herein and not otherwise defined herein having the respective
meanings ascribed thereto in the Registration Rights Agreement):
1.
Cut
Back. In accordance with Section 8(a) of the Registration
Rights Agreement, the Requisite Holders hereby consent to the reduction of the
aggregate number of Registrable Securities of the Company to be included in the
Registration Statement to the maximum number of shares the Staff permits to be
included. Any shares of Common Stock not permitted to be included in
the Registration Statement are hereinafter referred to as the “Cut Back
Shares.” The currently anticipated number of Registrable Securities
to be included in the Registration Statement (after giving effect to any
reduction contemplated hereby) and Cut Back Shares for each holder of
Registrable Securities is set forth on Schedule A
hereto. The Company shall use its commercially reasonable efforts to
minimize the number of Cut Back Shares; provided, however, that the Company
shall not agree to name any Consenting Holder as an “underwriter” in the
Registration Statement without the prior written consent of such Consenting
Holder. The Company shall provide the Consenting Holders and their
counsel the opportunity to comment on any written submission to be made to the
Staff in advance of such submission, and no such written submission shall be
made to the Staff to which any of the Consenting Holders’ counsel reasonably
objects. Any reduction in the number of Registrable Securities to be
included in the Registration Statement imposed on the Consenting Holders
pursuant to this Section 1 shall be allocated among the Consenting Holders on a
pro rata basis based on the number of Registrable Securities initially included
in the Registration Statement for the account of each Consenting Holder and
shall be applied, with respect to each Consenting Holder, first to the Warrant
Shares, unless the Staff otherwise requires or the Requisite Holders otherwise
agree in writing.
- 2
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2. Registration of Cut Back
Shares.
(a) From
and after (i) the later of (x) the six-month anniversary of the initial
effective date of the Registration Statement or (y) 60 days after substantially
all of the Registrable Securities covered by the Registration Statement have
been sold or otherwise disposed of or (ii) such earlier time as (x) the
Commission expressly modifies, in published guidance, its position regarding the
eligibility of issuers to register shares for resale on a shelf basis under Rule
415(a)(1)(i) such that a registration statement to be filed with respect to the
Cut Back Shares would be permitted and (y) the Staff confirms to the Company
that such registration would be permitted (the earlier of such dates, the
“Restriction Termination Date”), upon request in writing of any holder of Cut
Back Shares, the Company shall, as soon as reasonably practicable following its
receipt of such request, notify the other holders of Cut Back Shares in writing
of such registration, and each such holder shall be permitted to elect, by
written notice to the Company within ten (10) days of the delivery of the
aforesaid notice by the Company, to include such holder’s Cut Back Shares in the
Cut Back Registration Statement. The Company shall, as soon as
reasonably practicable after such ten (10) day period elapses, file a
registration statement covering the resale of the Cut Back Shares or such
portion thereof as the Commission shall permit (the “Cut Back Registration
Statement”) and use its reasonable best efforts to have the Commission declare
such registration statement effective as soon as reasonably
practicable. The right of any holder of Cut Back Shares to have such
Cut Back Shares included in the Cut Back Registration Statement shall terminate
at such time as such holder may immediately sell all of his, her or its Cut Back
Shares pursuant to Rule 144 promulgated under the Act (“Rule 144”) without time,
volume or other limitations under Rule 144, as determined by counsel to the
Company, or by counsel to such holder reasonably satisfactory to the Company,
pursuant to a written opinion letter to such effect, addressed and acceptable to
the Company’s transfer agent and the affected holder(s) (any such holder an
“Unrestricted Holder” and all other holders “Restricted Holders”). In
the event the Commission will not permit the registration of all of the Cut Back
Shares for which registration is requested pursuant to this Section 2, then the
shares included in the Cut Back Registration Statement shall be reduced to the
maximum number of shares the Staff permits to be included, with such cut-back to
be applied, first, to any Cut Back Shares held by an Unrestricted Holder, and
second, to the Cut Back Shares held by Restricted Holders, allocated among such
Restricted Holders on a pro rata basis based on the number of Cut Back Shares
with respect to which registration was requested.
(b) From
and after the date on which the Cut-Back Registration Statement is declared
effective, upon written request from a Restricted
Holder, the Company shall, using procedures substantially similar to the
procedures set forth in this Section 2 (and based on the time-periods set forth
in Section 2(a), modified as appropriate based on the date of effectiveness of
the Cut Back Registration Statement or the most recent subsequently effective
registration statement filed pursuant to this Section 2(b), as applicable),
periodically file such additional registration statements with respect to any
as-yet unregistered Cut Back Shares and use its reasonable best efforts to have
the Commission declare such registration statements effective. The
Company’s obligations under this Section 2(b) shall terminate at such time as
all Cut Back Shares have either been registered with the Commission or are held
by Unrestricted Holders.
- 3
-
3. Except
as otherwise set forth in Section 2, the terms of the Registration Rights
Agreement applicable to the Registration Statement (as defined therein) shall
also apply to the Cut Back Registration Statement and any registration statement
filed pursuant to Section 2(b), including without limitation the provisions
regarding indemnification, payment of expenses and maintenance of
effectiveness. Notwithstanding the foregoing, it is expressly
understood that the Company’s obligations to file and obtain effectiveness with
respect to the Cut Back Registration Statement and any registration statement
filed pursuant to Section 2(b) shall be governed by Section 2, and under no
circumstance shall the Company be obligated to pay liquidated damages with
respect to any delays or postponements in the filing or effectiveness of the Cut
Back Registration Statement or any registration statement filed pursuant to
Section 2(b).
4. No other
Changes. Except as expressly modified hereby, the Registration
Rights Agreement shall remain in full force and effect.
5. Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles that would result in the application of the substantive laws of
another jurisdiction. Any action brought by any party hereto against any other
party hereto concerning the transactions contemplated by this Agreement shall be
brought only in the civil or state courts of New York or in the federal courts
located in New York County. THE PARTIES TO THIS AGREEMENT AGREE TO
SUBMIT TO THE JURISDICTION OF SUCH COURTS AND WAIVE TRIAL BY JURY. In
the event that any provision of this Agreement or any other agreement delivered
in connection herewith is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision of any agreement.
6. Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended, together with the Registration
Rights Agreement, to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein.
7. Counterparts and
Effectiveness. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument. Counterpart
signature pages to this Agreement transmitted by facsimile transmission, by
electronic mail in “portable document format” (“.pdf”) form, or by any other
electronic means intended to preserve the original graphic and pictorial
appearance of a document, will have the same effect as physical delivery of the
paper document bearing an original signature. This Agreement shall be
deemed effective only upon execution by all Requisite Holders (as referenced in
the Registration Rights Agreement) and the Company.
[Signature
Pages Follow]
- 4
-
IN
WITNESS WHEREOF the undersigned have executed this Agreement as of the date
first above written.
|
Xmark
Opportunity Fund, Ltd.
|
Caduceus
Capital Master Fund Limited
|
|||
|
Xmark
Opportunity Fund, L.P.
|
Caduceus
Capital II, L.P.
|
|||
|
Xmark
JV Investment Partners, LLC
|
UBS
Eucalyptus Fund, L.L.C.
|
|||
|
PW
Eucalyptus Fund, Ltd.
|
||||
|
Summer
Street Life Sciences Hedge Fund
|
||||
|
Investors
LLC
|
||||
|
By:
|
/s/
Mitchell D. Kaye
|
By:
|
/s/
Samuel D. Isaly
|
|
|
Name: Mitchell
D. Kaye
|
Name: Samuel
D. Isaly
|
|||
|
Title:
Authorized Signatory
|
Title:
Managing Partner, Orbimed Advisors
|
|||
|
Address:
90 Grove Street
|
Address:
c/o OrbiMed Advisors
LLC
|
|||
|
Ridgefield,
CT 06877
|
767
Third Avenue, 30th
Floor
|
|||
|
Attn:
Mitchell D. Kaye
|
New
York,
NY 10017
|
|||
|
Knoll
Special Opportunities Fund II Master
|
Hunt-BioVentures,
L.P.
|
|||
|
Fund
Ltd.
|
||||
|
Europa
International, Inc.
|
By
: HBV GP, L.L.C, its General Partner
|
|||
|
By:
|
/s/
Fred Knoll
|
By:
|
/s/
Benjamin Nelson
|
|
|
Name: Fred
Knoll
|
Name: Benjamin
Nelson
|
|||
|
Title:
Portfolio Manager
|
Title: Vice
President and General Counsel
|
|||
|
Address: c/o
Knoll Capital Management
|
Address:
Hunt Investments
|
|||
|
1114
Avenue of the Americas, 45th
Floor
|
1900
N. Akard
|
|||
|
New
York, NY 10036
|
Dallas, TX 75201
|
|||
|
Beacon
Company
|
Rosebay
Medical Company, L.P.
|
|||
|
By:
Stanhope Gate Corp.,
|
By:
Rosebay Medical Company, Inc.,
|
|||
|
its
managing general partner
|
its
general partner
|
|||
|
By:
|
/s/
Jonathan White
|
By:
|
/s/
Stephen A. Ives
|
|
|
Name: Jonathan
White
|
Name:
Stephen A. Ives
|
|||
|
Title:
Director
|
Title:
Vice President
|
|||
[Signature
Page to Consent and Amendment Agreement]
|
PURDUE
PHARMA, L.P.
|
||
|
By: Purdue
Pharma Inc.,
|
||
|
its
general partner
|
||
|
By:
|
/s/ Edward B. Mahony
|
|
|
Name:
Edward B. Mahony
|
||
|
Title:
Executive Vice President,
|
||
|
Chief Financial Officer
|
||
[Signature
Page to Consent and Amendment Agreement]
|
NOVELOS
THERAPEUTICS, INC.
|
|
/s/ Harry S. Palmin
|
|
Name: Harry
S. Palmin
|
|
Title: President
and CEO
|
[Signature
Page to Consent and Amendment Agreement]
Schedule
A to Consent and Amendment Agreement
|
Shares Initially Offered
|
Estimated Cut Back Shares
|
|||||||||||||||||||||||
|
Holder of Registrable Securities
|
Conversion
Shares
|
Warrant
Shares
|
Total
Shares
|
Conversion
Shares
|
Warrant
Shares
|
Estimated
Registered
Shares
|
||||||||||||||||||
|
Beacon
Company
|
7,692,307 | 4,615,384 | 12,307,691 | 3,711,648 | 4,615,384 | 3,980,659 | ||||||||||||||||||
|
Rosebay
Medical Company L.P.
|
7,692,307 | 4,615,385 | 12,307,692 | 3,711,648 | 4,615,385 | 3,980,659 | ||||||||||||||||||
|
Xmark
Opportunity Fund, Ltd.
|
2,941,023 | 1,569,230 | 4,510,253 | 1,482,278 | 1,569,230 | 1,458,745 | ||||||||||||||||||
|
Xmark
Opportunity Fund, L.P.
|
1,470,511 | 784,615 | 2,255,126 | 741,139 | 784,615 | 729,372 | ||||||||||||||||||
|
Xmark
JV Investment Partners, LLC
|
1,470,511 | 784,615 | 2,255,126 | 741,139 | 784,615 | 729,372 | ||||||||||||||||||
|
Caduceus
Capital Master Fund Limited
|
2,692,424 | 1,453,846 | 4,146,270 | 1,351,402 | 1,453,846 | 1,341,022 | ||||||||||||||||||
|
Caduceus
Capital II, L.P.
|
2,205,835 | 1,156,538 | 3,362,373 | 1,118,348 | 1,156,538 | 1,087,487 | ||||||||||||||||||
|
Summer
Street Life Sciences Investors LLC
|
828,653 | 384,615 | 1,213,268 | 436,248 | 384,615 | 392,405 | ||||||||||||||||||
|
UBS
Eucalyptus Fund, L.L.C.
|
1,211,453 | 695,000 | 1,906,453 | 594,852 | 695,000 | 616,601 | ||||||||||||||||||
|
PW
Eucalyptus Fund, Ltd.
|
139,782 | 80,192 | 219,974 | 68,636 | 80,192 | 71,146 | ||||||||||||||||||
|
Knoll
Special Opportunities Fund II Master Fund, Ltd.
|
2,526,696 | 1,376,923 | 3,903,619 | 1,264,154 | 1,376,923 | 1,262,542 | ||||||||||||||||||
|
Europa
International, Inc.
|
3,521,080 | 1,838,461 | 5,359,541 | 1,787,652 | 1,838,461 | 1,733,428 | ||||||||||||||||||
|
Hunt
BioVentures, L.P.
|
3,256,860 | 1,741,346 | 4,998,206 | 1,640,298 | 1,741,346 | 1,616,562 | ||||||||||||||||||
| 37,649,442 | 21,096,150 | 58,745,592 | 18,649,442 | 21,096,150 | 19,000,000 | |||||||||||||||||||
[Signature
Page to Consent and Amendment Agreement]