Attached files
| file | filename |
|---|---|
| S-1/A - Cellectar Biosciences, Inc. | v189973_s1a.htm |
| EX-4.1 - Cellectar Biosciences, Inc. | v189973_ex4-1.htm |
| EX-23.2 - Cellectar Biosciences, Inc. | v189973_ex23-2.htm |
| EX-10.53 - Cellectar Biosciences, Inc. | v189973_ex10-53.htm |
| EX-10.51 - Cellectar Biosciences, Inc. | v189973_ex10-51.htm |
WRITTEN
CONSENT AND WAIVER
OF
HOLDERS OF SERIES C CONVERTIBLE PREFERRED STOCK AND
SERIES
E CONVERTIBLE PREFERRED STOCK
OF
NOVELOS THERAPEUTICS, INC.
WHEREAS,
the undersigned are (i) holders (the “Series E Holders”) of the outstanding
shares of Series E Convertible Preferred Stock, par value $.00001 per share (the
“Series E Preferred Stock”) of Novelos Therapeutics, Inc. (the “Corporation”),
including the Requisite Holders (as defined in the Certificate of Designations,
Preferences and Rights of the Series E Preferred Stock (the “Series E
Certificate of Designations”)) and (ii) holders (the “Series C Holders” and,
together with the Series E Holders, the “Holders”) of the outstanding shares of
Series C 8% Cumulative Convertible Preferred Stock, par value $.00001 per share
(the “Series C Preferred Stock”) of the Corporation;
WHEREAS,
the Corporation is seeking to consummate a public offering and sale (the
“Transaction”) of certain shares of its common stock, par value $.00001 per
share (the “Common Stock”), and warrants to purchase shares of Common Stock (the
“Warrants”) at a price and on terms to be determined, and it is expected that
the issue price of the Common Stock and the exercise price of the Warrants will
be below $0.65 per share;
WHEREAS,
Section 5(b)(2) of the Series E Certificate of Designations provides that the
consent of the Requisite Holders is required in order to issue shares of Common
Stock at an effective price per share below $0.65, and the Certificate of
Designations, Preferences and Rights of the Series C Preferred Stock (the
“Series C Certificate of Designations”) requires certain actions on the part of
the Corporation, and provides for certain adjustments to the conversion price of
the Series C Preferred Stock, in the event shares of Common Stock are offered or
sold at a price per share below $0.65; and
WHEREAS,
the Series E Holders and Series C Holders are willing to consent to the
Transaction on the terms, and for the consideration, set forth
herein;
NOW THEREFORE, the parties hereto agree
as follows:
1. Consent and Waiver of Series
C Holders. Pursuant to Section 4(d)(ii) of the Series C
Certificate of Designations, the Series C Holders hereby WAIVE any rights to
receive additional shares of Common Stock or other securities of the Corporation
they would have had, and any adjustment to the conversion price of the Series C
Preferred Stock that would otherwise have resulted, and any adjustment to the
exercise price and number of shares issuable upon exercise of those certain
warrants to purchase Common Stock issued to the Series C Holders on or about
September 30, 2005 that would otherwise have resulted, from the offer and sale
of the shares of Common Stock and warrants to purchase shares of Common Stock in
connection with the Transaction, and the issuance of the Incentive Warrants (as
defined below) hereunder, including without limitation under Section 4(d) of the
Series C Certificate of Designations, and hereby consent in all respects to the
Transaction and the issuance of the Incentive Warrants
hereunder. Except as expressly set forth herein, the rights,
privileges and designations of the Series C Preferred Stock shall continue in
full force and effect.
2. Consent of Series E
Holders. In accordance with Section 5(b)(2) of the Series E
Certificate of Designation, the Series E Holders hereby CONSENT in all respects,
pursuant to Section 5(b)(2) of the Series E Certificate of Designation to the
issuance of shares of Common Stock at a price per share, and the issuance of
warrants to purchase shares of Common Stock with an exercise price per share,
less than $0.65 in connection with the Transaction, and the issuance of the
Incentive Warrants hereunder. Except as expressly set forth herein,
the rights, privileges and designations of the Series E Preferred Stock shall
continue in full force and effect.
3. Incentive
Warrants. In consideration for the consents, waivers and
covenants of the Holders contained herein, if the Transaction is consummated and
in consideration for the foregoing, the Corporation shall issue to each Holder,
not later than the later of (i) the 20th Trading Day following the consummation
of the Transaction, and (ii) August 10, 2010, a warrant, substantially in the
form attached as Exhibit A hereto
(collectively, the “Incentive Warrants”), to purchase a number of shares of
Common Stock equal to such Holder’s Warrant Share Factor (if greater than zero),
each such warrant to expire on the fifth anniversary of the date of issuance and
to have an exercise price of $0.01 per share of Common Stock issuable
thereunder.
Each
Holder’s “Warrant Share Factor” shall be the number of shares of Common Stock
obtained based on the following formula:
W = [(C *
Pc) / (Px * 2)] – C
WHERE:
|
W
|
=
|
Warrant
Share Factor.
|
|
C
|
=
|
Number
of shares of Common Stock issuable upon such Holder’s Series C Preferred
Stock or Series E Preferred Stock, as applicable.
|
|
Pc
|
=
|
Pre-Transaction
conversion price per share of Common Stock for Series C Preferred Stock or
Series E Preferred Stock, as applicable.
|
|
Px
|
=
|
the
volume weighted average price of the Common Stock as reported on Bloomberg
LP for the 20 Trading Day period immediately following the consummation of
the
Transaction.
|
“Trading
Day” shall mean a day on which quotations are published on the OTC Bulletin
Board.
2
4. Authorized
Shares. The parties acknowledge and understand that the
Corporation will not have sufficient authorized and unissued shares of Common
Stock available for issuance upon exercise of the Incentive
Warrants. The Corporation agrees to use its reasonable best efforts
to obtain, prior to January 1, 2011, the requisite consent of its stockholders
to amend its Certificate of Incorporation to increase the number of shares of
Common Stock authorized thereunder to at least the minimum amount that would
result in their being sufficient authorized, unissued and unreserved shares of
Common Stock available for issuance upon exercise of all of the Incentive
Warrants (the “Amendment”). In the event the Amendment is not
effective on or before January 1, 2011, the Corporation shall pay to each
Holder, as liquidated damages and not as a penalty, an amount in cash equal to
12% of the aggregate liquidation preference applicable to the shares of Series E
Preferred Stock or Series C Preferred Stock, as applicable, held by such Holder,
and an additional amount equal to 2% of such liquidation preference on the first
day of each calendar month thereafter until the Amendment is
effective. In furtherance of the foregoing, each Holder agrees to
vote or cause to be voted all shares of the Corporation’s capital stock owned by
such Holder, or over which such Holder has voting control, from time to time and
at all times, in whatever manner as shall be necessary to approve the aforesaid
increase to the number of authorized shares of Common Stock.
5. “No-Short.” Each
Holder covenants that neither it nor any affiliate acting on its behalf or
pursuant to any understanding with it will execute any Short Sales (as defined
in Regulation SHO promulgated under the Securities Exchange Act of 1934, as
amended) during the period commencing upon the consummation of the Transaction
and ending on the 180th day following
such consummation.
6. Registration
Rights. If after one year after the issuance of the Incentive
Warrants, a Holder is unable to immediately sell all of its common stock
underlying the Warrants pursuant to Rule 144 promulgated under the Securities
Act of 1933, as amended (“Rule 144”) without time, volume or other limitations
under Rule 144, then the Company will use reasonable best efforts to register
such shares with the Securities and Exchange Commission (the “Commission”) and
use its reasonable best efforts to have the Commission declare such registration
statement effective. Except as otherwise provided under this Section
6, the terms, conditions and procedures set forth in Sections 3 through 7 of
that certain Registration Rights Agreement (including without limitation the
provisions governing expenses, maintenance of registration, obligations of
holders and indemnification) by and among the Company and certain of the Holders
dated February 11, 2009 shall govern the aforesaid registration as fully as if
such terms were set forth herein and applicable to such registration, provided
that under no circumstances shall the Company be obligated to pay liquidated
damages in respect of such registration.
7. Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended, together with the Warrants, to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein.
3
8. Choice of
Law. This Consent and Waiver shall be governed by and
construed in accordance with the laws of the State of Delaware 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
against any other party concerning this Consent and Waiver 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 AND THE INDIVIDUALS EXECUTING THIS CONSENT AND WAIVER
AND OTHER AGREEMENTS REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH ON
BEHALF OF THE CORPORATION AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS AND
WAIVE TRIAL BY JURY. The prevailing party shall be entitled to recover from the
other party(ies) its reasonable attorney’s fees and costs. In the event that any
provision of this Consent and Waiver 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.
9. Counterparts. This
Consent and Waiver 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 Consent and Waiver
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.
[Remainder
of Page Intentionally Left Blank]
4
IN
WITNESS WHEREOF the undersigned have executed this Consent and Waiver as of the
date first above written.
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SERIES
E HOLDERS:
|
|
|
XMARK
OPPORTUNITY FUND, LTD.
|
CADUCEUS
CAPITAL MASTER FUND
|
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XMARK
OPPORTUNITY FUND, L.P.
|
LIMITED
|
|
XMARK
JV INVESTMENT
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CADUCEUS
CAPITAL II, L.P.
|
|
PARTNERS,
LLC
|
UBS
EUCALYPTUS FUND, L.L.C.
|
|
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PW
EUCALYPTUS FUND, LTD.
|
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SUMMER
STREET LIFE SCIENCES
|
|
| HEDGE FUND INVESTORS LLC | |
|
By:
/s/ Mitchell D.
Kaye
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By:
_______________________
|
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Name:
Mitchell D. Kaye
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Name:
Samuel D. Isaly
|
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Title:
Authorized Signatory
|
Title:
Managing Partner, Orbimed Advisors
|
|
Address:
90 Grove Street
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Address:
c/o OrbiMed Advisors LLC
|
|
Ridgefield,
CT 06877
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767
Third Avenue, 30th Floor
|
|
Attn:
Mitchell D. Kaye
|
New
York, NY
10017
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KNOLL
SPECIAL OPPORTUNITIES
FUND
II MASTER FUND LTD.
EUROPA
INTERNATIONAL, INC.
By:
_________________________
Name:
Fred Knoll
Title:
Portfolio Manager
Address:
c/o Knoll Capital Management
666 Fifth
Avenue, Suite 3702
New York,
NY 10103
|
BEACON
COMPANY
|
ROSEBAY
MEDICAL COMPANY, L.P.
|
|
By:
Stanhope Gate Corp., its managing
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By:
Rosebay Medical Company, Inc., its
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|
general
partner
|
general
partner
|
|
By:
/s/ Steven
Meiklejohn
|
By:
/s/ Stephen A.
Ives
|
|
Name:
Steven Meiklejohn
|
Name:
Stephen A. Ives
|
|
Title:
Director
|
Title:
Vice
President
|
SERIES
C HOLDERS:
|
|
|
|
LONGVIEW
FUND, LP
|
LONGVIEW
EQUITY FUND, LP
|
|
By:
/s/ Peter T.
Benz
|
By:
/s/ Peter T.
Benz
|
|
Name:
Peter T. Benz
|
Name:
Peter T. Benz
|
|
Title:
Manager
|
Title:
Manager
|
|
Address:
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Address:
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LONGVIEW
INTERNATIONAL
EQUITY
FUND, LP
By: /s/ Peter T.
Benz
Name: Peter
T. Benz
Title:
Manager
Address:
Agreed
and accepted:
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NOVELOS
THERAPEUTICS, INC.
|
|
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Dated:
July 6, 2010
|
|
|
By:
/s/ Harry S.
Palmin
|
|
|
Name:
Harry S. Palmin
|
|
|
Title:
President and CEO
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EXHIBIT
A
FORM OF
WARRANT
(included as Exhibit 10.53
to this filing)