UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
AEROGEN, INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
007779309
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(CUSIP Number)
Mitchell D. Kaye, Manager with a copy to:
Xmark Asset Management, LLC Steven E. Siesser, Esq.
301 Tresser Blvd. Lowenstein Sandler PC
Suite 1320 65 Livingston Avenue
Stamford, Connecticut 06901 Roseland, New Jersey 07068
(203) 653-2511 (973) 597-2506
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 19, 2005
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Cusip No. 007779309
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Asset Management, LLC
13-3954392
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2. Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not
(b) Applicable
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3. SEC Use Only
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4. Source of Funds (See Instructions): WC
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e): Not Applicable
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6. Citizenship or Place of Organization: New York, United States
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Number of 7. Sole Voting Power: *
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Shares Beneficially 8. Shared Voting Power: *
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Owned by
Each Reporting 9. Sole Dispositive Power: *
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Person With 10. Shared Dispositive Power: *
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,186,373*
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): Not Applicable
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13. Percent of Class Represented by Amount in Row (11): 19.7%*
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14. Type of Reporting Person (See Instructions): IA
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* Xmark Asset Management, LLC, a New York limited liability company ("XAM"),
serves as investment manager for each of Xmark Fund, L.P., a Delaware limited
partnership ("Xmark LP"), and Xmark Fund, Ltd., a Cayman Islands exempted
company ("Xmark Ltd"). In such capacity, XAM possesses the power to vote and
direct the disposition of all securities held by Xmark LP and Xmark Ltd. As of
January 25, 2005, Xmark LP is the holder of (i) 50,337 shares (the "Xmark LP
Preferred") of the Series A-1 Preferred Stock, par value $0.001 per share (the
"Preferred Stock") of Aerogen, Inc., a Delaware corporation (the "Company"),
which are presently convertible into 503,370 shares of the Company's common
stock, par value $0.001 per share (the "Common Stock"), and (ii) 23,560 shares
of Common Stock issued in lieu of the cash payment of quarterly dividends on the
Preferred Stock held by Xmark LP for the quarters ended March 31, 2004, June 30,
2004 and September 30, 2004 (which September 30, 2004 dividends were declared by
the Board of Directors of the Company but not yet issued as of the date of this
Amendment No. 1 to Schedule 13D). As of January 25, 2005, Xmark Ltd is the
holder of (i) 62,996 shares (the "Xmark Ltd Preferred") of Preferred Stock,
which are presently convertible into 629,960 shares of Common Stock, and (ii)
29,483 shares of Common Stock issued in lieu of the cash payment of quarterly
dividends on the Preferred Stock held by Xmark Ltd for the quarters ended March
31, 2004, June 30, 2004 and September 30, 2004 (which September 30, 2004
dividends were declared by the Board of Directors of the Company but not yet
issued as of the date of this Amendment No. 1 to Schedule 13D). The terms of the
Xmark LP Preferred and the Xmark Ltd Preferred preclude each of Xmark LP and
Xmark Ltd from converting the Xmark LP Preferred and the Xmark Ltd Preferred if
the conversion thereof would result in Xmark LP, Xmark Ltd and/or their
affiliates beneficially owning in excess of 4.99% of the Company's outstanding
Common Stock following any such conversion (the "Issuance Limitation"). Each
such Issuance Limitation is waivable by Xmark LP and Xmark Ltd, respectively,
providing 61 days' advance written notice to the Company. On November 3, 2004,
Xmark LP and Xmark Ltd each provided a written waiver of the Issuance Limitation
to the Company with respect to the Xmark LP Preferred and the Xmark Ltd
Preferred. As a result of this waiver and as a result of the fact that XAM
possesses the sole power to vote and direct the disposition of the securities
described above, for purposes of Reg. Section 240.13d-3, XAM may be deemed to
beneficially own 1,186,373 shares of Common Stock, or approximately 19.7% of the
shares of Common Stock deemed issued and outstanding as of January 25, 2005.
Item 2. Identity and Background.
-----------------------
Item 2 of the Schedule 13D is hereby amended and restated in its
entirety as follows:
The person filing this statement is Xmark Asset Management, LLC, a New
York limited liability company ("XAM"). XAM's business address is 301 Tresser
Blvd., Suite 1320, Stamford, Connecticut 06901.
XAM serves as the investment manager for Xmark Fund, L.P., a Delaware
limited partnership ("Xmark LP") and Xmark Fund, Ltd., a Cayman Islands exempted
company ("Xmark Ltd"). Xmark LP and Xmark Ltd are engaged in the investment in
personal property of all kinds, including but not limited to capital stock,
depository receipts, investment companies, mutual funds, subscriptions,
warrants, bonds, notes, debentures, options and other securities of whatever
kind and nature.
Mitchell D. Kaye, whose business address is c/o Xmark Asset
Management, LLC, 301 Tresser Blvd., Suite 1320, Stamford, Connecticut 06901, is
the sole Manager of XAM.
Neither of XAM nor Mr. Kaye has ever been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors), nor has
either XAM or Mr. Kaye been a party to any civil proceeding commenced before a
judicial or administrative body of competent jurisdiction as a result of which
XAM or Mr. Kaye, respectively, was or is now subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Mr. Kaye is a citizen of the United States.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 of the Schedule 13D is hereby amended by adding the following:
Based on information reported by the Company in its Form 10-Q for the
fiscal quarter ended September 30, 2004 filed with the Securities and Exchange
Commission on November 15, 2004, there were 4,884,829 shares of Common Stock
outstanding as of November 5, 2004. As of January 25, 2005, Xmark LP is the
holder of (i) 50,337 shares (the "Xmark LP Preferred") of the Series A-1
Preferred Stock, par value $0.001 per share (the "Preferred Stock") of Aerogen,
Inc., a Delaware corporation (the "Company"), which are presently convertible
into 503,370 shares of the Company's common stock, par value $0.001 per share
(the "Common Stock"), and (ii) 23,560 shares of Common Stock issued in lieu of
the cash payment of quarterly dividends on the Preferred Stock held by Xmark LP
for the quarters ended March 31, 2004, June 30, 2004 and September 30, 2004
(which September 30, 2004 dividends were declared by the Board of Directors of
the Company but not yet issued as of the date of this Amendment No. 1 to
Schedule 13D). As of January 25, 2005, Xmark Ltd is the holder of (i) 62,996
shares (the "Xmark Ltd Preferred") of Preferred Stock, which are presently
convertible into 629,960 shares of Common Stock, and (ii) 29,483 shares of
Common Stock issued in lieu of the cash payment of quarterly dividends on the
Preferred Stock held by Xmark Ltd for the quarters ended March 31, 2004, June
30, 2004 and September 30, 2004 (which September 30, 2004 dividends were
declared by the Board of Directors of the Company but not yet issued as of the
date of this Amendment No. 1 to Schedule 13D).
The terms of the Xmark LP Preferred and the Xmark Ltd Preferred
preclude each of Xmark LP and Xmark Ltd from converting the Xmark LP Preferred
and the Xmark Ltd Preferred if the conversion thereof would result in Xmark LP,
Xmark Ltd and/or their affiliates beneficially owning in excess of 4.99% of the
Company's outstanding Common Stock following any such conversion (the "Issuance
Limitation"). Each such Issuance Limitation is waivable by Xmark LP and Xmark
Ltd, respectively, providing 61 days' advance written notice to the Company. On
November 3, 2004, Xmark LP and Xmark Ltd each provided a written waiver of the
Issuance Limitation to the Company with respect to the Xmark LP Preferred and
the Xmark Ltd Preferred. As a result of this waiver and as a result of the fact
that XAM possesses the sole power to vote and direct the disposition of the
securities described above, for purposes of Reg. Section 240.13d-3, XAM may be
deemed to beneficially own 1,186,373 shares of Common Stock, or approximately
19.7% of the shares of Common Stock deemed issued and outstanding as of January
25, 2005.
During the sixty days prior to January 25, 2005, there were no
transactions in Common Stock, or securities convertible into, exercisable for or
exchangeable for Common Stock, by XAM or any person or entity controlled by XAM
or any person or entity for which XAM possesses voting or investment control
over the securities thereof, except that Xmark LP and Xmark Ltd sold: (1) on
January 19, 2005, warrants to purchase up to an aggregate of 1,666,660 shares of
the Company's Common Stock for an aggregate purchase price of $383,331.80 and
(2) on January 24, 2005, 53,333 shares of the Company's Preferred Stock for an
aggregate purchase price of $960,000.00, in each case, as more fully described
in Item 6 of this Amendment No. 1 to Schedule 13D. On or about January 20, 2005,
XAM was notified that the Board of Directors of the Company had declared that
Xmark LP would receive 15,149 shares of Common Stock and Xmark Ltd would receive
18,958 shares of Common Stock from the Company, as payment in lieu of cash
dividends on the Preferred Stock for the quarter ended September 30, 2004.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
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Item 6 of the Schedule 13D is hereby amended by adding the following:
Pursuant to the terms of a Securities Purchase Agreement, dated as of
January 19, 2005, by and between Xmark LP and The Convertible Fund Offshore,
Ltd., Xmark LP sold warrants to purchase up to 740,250 shares of the Company's
Common Stock at an exercise price of $3.25 per share for an aggregate purchase
price of $170,257.50, or a purchase price per warrant of $0.23. Pursuant to the
terms of a Securities Purchase Agreement, dated as of January 19, 2005, by and
between Xmark Ltd and The Convertible Fund Offshore, Ltd., Xmark Ltd sold
warrants to purchase up to 926,410 shares of the Company's Common Stock at an
exercise price of $3.25 per share for an aggregate purchase price of
$213,074.30, or a purchase price per warrant of $0.23. These warrants represent
all of the warrants to purchase the Company's Common Stock held by Xmark LP and
Xmark Ltd.
Pursuant to the terms of a Securities Purchase Agreement, dated as of
January 24, 2005, by and between Xmark LP and Enable Growth Partners, LP, Xmark
LP sold 23,688 shares of Preferred Stock for an aggregate purchase price of
$426,382.00, or a purchase price per share of approximately $18.00. Pursuant to
the terms of a Securities Purchase Agreement, dated as of January 24, 2005, by
and between Xmark Ltd and Enable Growth Partners, LP, Xmark Ltd sold 29,645
shares of Preferred Stock for an aggregate purchase price of $533,618.00, or a
purchase price per share of approximately $18.00.
The descriptions of the transactions and agreements set forth in this
Amendment No. 1 to Schedule 13D are qualified in their entirety by reference to
the complete agreements governing such matters, which are incorporated by
reference or attached to this Amendment No. 1 to Schedule 13D as exhibits
pursuant to Item 7 hereof.
Item 7. Material to be Filed as Exhibits.
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Item 7 of the Schedule 13D is hereby amended by adding the following:
5. Securities Purchase Agreement, dated as of January 19, 2005, by and
between Xmark LP and The Convertible Fund Offshore, Ltd.
6. Securities Purchase Agreement, dated as of January 19, 2005, by and
between Xmark Ltd and The Convertible Fund Offshore, Ltd.
7. Securities Purchase Agreement, dated as of January 24, 2005, by and
between Xmark LP and Enable Growth Partners, LP.
8. Securities Purchase Agreement, dated as of January 24, 2005, by and
between Xmark Ltd and Enable Growth Partners, LP.
Signature
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
As of January 25, 2005
XMARK ASSET MANAGEMENT, LLC
/s/ Mitchell D. Kaye
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Mitchell D. Kaye, Manager
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).
Exhibit 5
SECURITIES PURCHASE AGREEMENT
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This SECURITIES PURCHASE AGREEMENT, dated as of January 19, 2005 (this
"Agreement"), is by and between Xmark Fund, L.P, a Delaware limited partnership
(the "Seller"); and The Convertible Fund Offshore, Ltd., a corporation duly
organized under the laws of the British Virgin Islands (the "Purchaser")
WHEREAS, the Seller own warrants (the "Warrants") to purchase an aggregate
of (i) 339,600 shares (the "March Warrant Shares") of Common Stock of Aerogen
Inc. (the "Issuer") having an exercise price of $3.25 and an expiration date of
March 22, 2009 and (ii) 400,650 shares (the "May Warrant Shares" and together
with the March Warrant Shares, the "Shares") of Common Stock of Aerogen having
an exercise price of $3.25 and an expiration of May 11, 2009; and
WHEREAS, the Seller wishes to sell the Warrants to the Purchaser and the
Purchaser is willing to purchase the Warrants from the Seller.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements and warranties contained herein, the sufficiency of which as
consideration is hereby acknowledged, the parties agree as follows:
1. Definitions. When used herein, the following terms shall have the
indicated meanings:
"Encumbrance" means any material pledge, hypothecation, assignment, lien,
restriction, charge, claim, security interest, option, preference, priority or
other preferential arrangement of any kind or nature whatsoever.
"Transfer Restriction" means, with respect to any security or other
property, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such security or other property or to
enforce the provisions thereof or of any document related thereto, whether set
forth in such security or other property itself or in any document related
thereto or arising by operation of law, including, without limitation, such
conditions or restrictions arising under federal, state or foreign securities
laws or under contract.
2. Sale and Purchase. (a) Simultaneously herewith, the Seller is
selling to the Purchaser, and the Purchaser is purchasing from the Seller (the
"Transaction"), the Warrants for an aggregate purchase price (the "Purchase
Price") of $170,257.50.
(b) Simultaneously herewith, the Seller is delivering to (i) the Purchaser,
at the address set forth in Section 7 hereof, the Warrants and (ii) the
Purchaser and the Issuer an Assignment Form (to the extent required by the terms
of the Warrants), in the form (if any) attached to the Warrants, duly executed
by an authorized representative of such Seller.
(c) Simultaneously herewith, the Purchaser is delivering to the Seller the
Purchase Price by wire transfer of immediately available funds to the account
designed in writing by Seller.
3. Representations, Warranties and Agreements of the Seller.
The Seller hereby represents, warrants and agrees on the date hereof as
follows:
(a) The Seller has full power and authority to enter into this Agreement
and to consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance by the Seller of this Agreement
and consummation by the Seller of the Transaction do not and will not: (i)
violate any decree or judgment of any court or other governmental authority
applicable to or binding on the Seller; (ii) violate any provision of any
federal or state statute, rule or regulation which is, to the Seller's
knowledge, applicable to the Seller; or (iii) violate any contract to which the
Seller or any of its assets or properties are bound. To the Seller's knowledge,
no consent or approval of, or filing with, any governmental authority or other
person not a party hereto is required for the execution, delivery and
performance by the Seller of this Agreement or the consummation of the
Transaction, except for such consents or approvals of the Issuer required
pursuant to the terms of the Warrants or any of the transaction documents
executed in connection with the Seller's acquisition of the Warrants.
(c) Seller paid full purchase price for, became beneficial owner of and
acquired from the Issuer the Warrants on a date that was at least thirty (30)
days prior to the date hereof.
(d) With respect to the Transaction, (a) the Seller is the record and
beneficial owner of the Warrants, free and clear of any Encumbrances, except for
those Encumbrances imposed by securities laws generally; (b) the Warrants to be
delivered are not subject to any Transfer Restriction, other than (i) any
restrictions, if any, set forth in the terms of the Warrants or the purchase
agreement pursuant to which such Warrants were acquired and (ii) the restriction
that the Warrants and the Shares have not been registered under the Securities
Act and, therefore, cannot be resold unless they are registered under the
Securities Act and applicable state securities laws in a transaction exempt from
or not subject to the registration requirements of the Securities Act and
applicable state securities laws (the "Permitted Securities Law Restriction");
and (c) upon the transfer of the Warrants to Purchaser, Purchaser will acquire
good and marketable title thereto (assuming that Purchaser is a bona fide
purchaser within the meaning of Section 8-302 of the New York Uniform Commercial
Code), and will be the legal and beneficial owner of such Warrants, free and
clear of any Encumbrances or Transfer Restrictions, other than the Permitted
Securities Law Restriction.
(e) No proceedings relating to the Warrant are pending or, to the knowledge
of the Seller, threatened before any court, arbitrator or administrative or
governmental body that would adversely affect the Seller's right to transfer the
Warrant to the Purchaser.
(f) The Seller has provided or made available to the Purchaser upon
Purchaser's written request a copy of the Warrant, as well as any other
information and documents reasonably requested by the Purchaser, and such
information provided to the Purchaser completely and accurately describes any
Transfer Restrictions applicable to the Warrant.
4. Representations, Warranties and Agreement of the Purchaser.
The Purchaser hereby represents, warrants and agrees as of the date hereof
as follows:
(a) The Purchaser is authorized to do business under the laws of the
British Virgin Islands.
(b) The Purchaser has full power and authority to enter into this Agreement
and to consummate the Transaction. The execution, delivery and performance of
this Agreement by the Purchaser have been duly authorized by all necessary
corporate proceedings on the part of the Purchaser. This Agreement has been duly
and validly executed and delivered by the Purchaser and constitutes the legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in effect
that affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(c) The execution, delivery and performance by the Purchaser of this
Agreement and consummation by the Purchaser of the Transaction do not and will
not: (i) violate any decree or judgment of any court or other governmental
authority applicable to or binding on the Purchaser; (ii) violate any provision
of any federal or state statute, rule or regulation which is, to the Purchaser's
knowledge, applicable to the Purchaser; (iii) violate any contract to which the
Purchaser is a party or by which the Purchaser or any of its assets or
properties are bound; or (iv) violate or conflict with any provision of the
charter or by-laws of the Purchaser. No consent or approval of, or filing with,
any governmental authority or other person not a party hereto is required for
the execution, delivery and performance by the Purchaser of this Agreement or
the consummation of the Transaction.
(d) The Purchaser is an "accredited investor" within the meaning of
Regulation D under the Securities Act. The Purchaser acknowledges that (i) the
Warrant is a "restricted security" for purposes of Rule 144 and (ii) the
Warrants have not been registered under the Securities Act and, therefore,
cannot be resold unless they are registered under the Securities Act and
applicable state securities laws or in a transaction exempt from or not subject
to the registration requirements of the Securities Act and applicable state
securities laws.
(e) The Purchaser is aware of the Issuer's business affairs and financial
condition, and has acquired sufficient information about the Issuer to reach an
informed and knowledgeable decision to acquire the Warrants. The Purchaser
acknowledges that neither the Seller or any of its agents, representatives,
officers, directors, partners, members or affiliates thereof has made any
representations and warranties of any nature or kind concerning the Warrants,
the Shares and/or the Issuer.
(f) If any opinion of counsel is required to be delivered to the Issuer
pursuant to any Transfer Restriction or otherwise in connection with the
transfer of the Warrants from Seller to Purchaser, the Purchaser shall cause
such opinion to be provided at its own expense.
5. Representation by Purchaser that it is aware that Xmark may have
Confidential Information
The Purchaser acknowledges, agrees and represents to Seller the following:
(i) The Purchaser is aware that Seller and Xmark Fund, Ltd. (collectively,
the "Xmark Funds") may be in possession of certain nonpublic
information concerning the Company and the Warrants (the "Xmark
Information"), and that the Xmark Funds have agreed with the Company
to keep the Xmark Information confidential. The Purchaser acknowledges
that a reasonable investor could deem that the Xmark Information is
material to an investment decision, and that the Xmark Information
could be of an adverse nature to an investor in the Warrants. The
Purchaser is freely deciding to purchase the Warrants at the
agreed-upon price for its own reasons based on the information it
currently possesses, which it deems sufficient, notwithstanding that
it may lack access to the Xmark Information, to make its decision to
participate in the purchase and sale of the Warrants. The Purchaser
does not and will not request, desire or require either of the Xmark
Funds, now or in the future, to disclose any or all of the Xmark
Information to the Purchaser or any of its affiliates, agents or
representatives.
(ii) The Purchaser is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its purchase of and investment in
the Warrants. The Purchaser is aware that an investment in the
Warrants involves a high degree of risk and that the Purchaser may
lose the entire amount of its investment in the Warrants. The
Purchaser is able to bear the economic risk of its investment in the
Warrants and can afford the complete loss of such investment.
6. Purchaser Release and Waiver
The Purchaser agrees not to pursue and to release fully any potential suits,
claims, causes of action, remedies, damages and other actions whatsoever, at law
or in equity, against any of the Xmark Funds and their respective affiliates,
officers, directors, agents, employees, representatives and assigns, arising out
of the purchase of the Warrants or the nondisclosure of the Xmark Information to
the Purchaser. The Purchaser hereby acknowledges receipt of satisfactory
consideration for the agreements set forth in this paragraph, including but not
limited to the consummation of the purchase and sale of the Warrants at the
agreed-upon purchase price. The Purchase acknowledges and agrees that Seller is
relying on this Section 6 in engaging in the sale herein, and would not engage
in the sale of the Warrants in the absence of this Section 6.
7. Further Assurances. Each of the Purchaser and the Seller will, upon the
reasonable request of the other, execute and deliver all other such documents
and instruments reasonably deemed necessary or desirable by the other party to
fully effect the purchase and sale contemplated hereby.
8. Amendment. This Agreement may be amended, modified or supplemented but
only in a writing signed by the Seller and the Purchaser.
9. Notices. Any notice, request, instruction or other document to be given
hereunder by a party hereto (other than the Warrants to be delivered by the
Seller to the Purchaser pursuant to Section 2, which shall be delivered as
described therein) shall be in writing and shall be deemed to have been given,
(a) when received if given in person or by a courier or a courier service or (b)
on the date of transmission if sent by facsimile transmission:
(a) If to the Seller, addressed as follows:
Xmark Asset Management, LLC
152 West 57th Street, 21st Floor
New York, NY 10019
Attn: Mitchell Kaye
Facsimile: 212-247-1329
(b) If to the Purchaser, addressed as follows:
The Convertible Fund Offshore Ltd.
165 Beacon Lane
Jupiter, Florida 33469
Facsimile: 203-286-1728
or to such other person or address as a party hereto may designate for itself by
notice given as herein provided.
10. Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile transmission), each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (without reference to choice
OF law doctrine).
12. Expenses. Except as otherwise expressly provided herein, each party
hereto will bear its own expenses in connection with the purchase(s) and sale(s)
of the Warrants contemplated hereby, except that the Seller shall bear all
transfer and issuance taxes imposed on such purchase and sale.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between such parties with
respect to such subject matter.
14. Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the other
provisions hereof shall not be affected thereby.
15. Captions. The Section captions herein are for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
16. Specific Performance. The parties acknowledge that money damages will
not be a sufficient remedy for breach of this Agreement and that the parties
hereto may obtain specific performance or other injunctive relief, without the
necessity of posting a bond or security therefor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
THE CONVERTIBLE FUND OFFSHORE LTD.
By: /s/ Steve Seefeld
Name Steve Seefeld
Title
XMARK FUND, L.P.
By: /s/ Mitchell D. Kaye
Name: Mitchell D. Kaye
Title: Chief Investment Officer
Exhibit 6
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of January 19, 2005 (this
"Agreement"), is by and between Xmark Fund, Ltd., an exempted Company (the
"Seller"); and The Convertible Fund Offshore, Ltd., a corporation duly organized
under the laws of the British Virgin Islands (the "Purchaser")
WHEREAS, the Seller own warrants (the "Warrants") to purchase (i) an
aggregate of 425,010 shares (the " March Warrant Shares") of Common Stock of
Aerogen Inc. (the "Issuer") having an exercise price of $3.25 and an expiration
date of March 22, 2009 and (ii) 501,400 shares (the "May Warrant Shares" and
together with the March Warrant Shares, the "Shares") of Common Stock of Aerogen
having an exercise price of $3.25 and an expiration of May 11, 2009; and
WHEREAS, the Seller wishes to sell the Warrants to the Purchaser and the
Purchaser is willing to purchase the Warrants from the Seller.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements and warranties contained herein, the sufficiency of which as
consideration is hereby acknowledged, the parties agree as follows:
1. Definitions. When used herein, the following terms shall have the
indicated meanings:
"Encumbrance" means any material pledge, hypothecation, assignment, lien,
restriction, charge, claim, security interest, option, preference, priority or
other preferential arrangement of any kind or nature whatsoever.
"Transfer Restriction" means, with respect to any security or other
property, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such security or other property or to
enforce the provisions thereof or of any document related thereto, whether set
forth in such security or other property itself or in any document related
thereto or arising by operation of law, including, without limitation, such
conditions or restrictions arising under federal, state or foreign securities
laws or under contract.
2. Sale and Purchase. (a) Simultaneously herewith, the Seller is selling to
the Purchaser, and the Purchaser is purchasing from the Seller (the
"Transaction"), the Warrants for an aggregate purchase price (the "Purchase
Price") of $213,074.30.
(b) Simultaneously herewith, the Seller is delivering to (i) the Purchaser,
at the address set forth in Section 7 hereof, the Warrants and (ii) the
Purchaser and the Issuer an Assignment Form (to the extent required by the terms
of the Warrants), in the form (if any) attached to the Warrants, duly executed
by an authorized representative of such Seller.
(c) Simultaneously herewith, the Purchaser is delivering to the Seller the
Purchase Price by wire transfer of immediately available funds to the account
designed in writing by Seller.
3. Representations, Warranties and Agreements of the Seller.
The Seller hereby represents, warrants and agrees on the date hereof as
follows:
(a) The Seller has full power and authority to enter into this Agreement
and to consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance by the Seller of this Agreement
and consummation by the Seller of the Transaction do not and will not: (i)
violate any decree or judgment of any court or other governmental authority
applicable to or binding on the Seller; (ii) violate any provision of any
federal or state statute, rule or regulation which is, to the Seller's
knowledge, applicable to the Seller; or (iii) violate any contract to which the
Seller or any of its assets or properties are bound. To the Seller's knowledge,
no consent or approval of, or filing with, any governmental authority or other
person not a party hereto is required for the execution, delivery and
performance by the Seller of this Agreement or the consummation of the
Transaction, except for such consents or approvals of the Issuer required
pursuant to the terms of the Warrants or any of the transaction documents
executed in connection with the Seller's acquisition of the Warrants.
(c) Seller paid full purchase price for, became beneficial owner of and
acquired from the Issuer the Warrants on a date that was at least thirty (30)
days prior to the date hereof.
(d) With respect to the Transaction, (a) the Seller is the record and
beneficial owner of the Warrants, free and clear of any Encumbrances, except for
those Encumbrances imposed by securities laws generally; (b) the Warrants to be
delivered are not subject to any Transfer Restriction, other than (i) any
restrictions, if any, set forth in the terms of the Warrants or the purchase
agreement pursuant to which such Warrants were acquired and (ii) the restriction
that the Warrants and the Shares have not been registered under the Securities
Act and, therefore, cannot be resold unless they are registered under the
Securities Act and applicable state securities laws in a transaction exempt from
or not subject to the registration requirements of the Securities Act and
applicable state securities laws (the "Permitted Securities Law Restriction");
and (c) upon the transfer of the Warrants to Purchaser, Purchaser will acquire
good and marketable title thereto (assuming that Purchaser is a bona fide
purchaser within the meaning of Section 8-302 of the New York Uniform Commercial
Code), and will be the legal and beneficial owner of such Warrants, free and
clear of any Encumbrances or Transfer Restrictions, other than the Permitted
Securities Law Restriction.
(e) No proceedings relating to the Warrant are pending or, to the knowledge
of the Seller, threatened before any court, arbitrator or administrative or
governmental body that would adversely affect the Seller's right to transfer the
Warrant to the Purchaser.
(f) The Seller has provided or made available to the Purchaser upon
Purchaser's written request a copy of the Warrant, as well as any other
information and documents reasonably requested by the Purchaser, and such
information provided to the Purchaser completely and accurately describes any
Transfer Restrictions applicable to the Warrant.
4. Representations, Warranties and Agreement of the Purchaser.
The Purchaser hereby represents, warrants and agrees as of the date hereof
as follows:
(a) The Purchaser is authorized to do business under the laws of the
British Virgin Islands.
(b) The Purchaser has full power and authority to enter into this Agreement
and to consummate the Transaction. The execution, delivery and performance of
this Agreement by the Purchaser have been duly authorized by all necessary
corporate proceedings on the part of the Purchaser. This Agreement has been duly
and validly executed and delivered by the Purchaser and constitutes the legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in effect
that affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(c) The execution, delivery and performance by the Purchaser of this
Agreement and consummation by the Purchaser of the Transaction do not and will
not: (i) violate any decree or judgment of any court or other governmental
authority applicable to or binding on the Purchaser; (ii) violate any provision
of any federal or state statute, rule or regulation which is, to the Purchaser's
knowledge, applicable to the Purchaser; (iii) violate any contract to which the
Purchaser is a party or by which the Purchaser or any of its assets or
properties are bound; or (iv) violate or conflict with any provision of the
charter or by-laws of the Purchaser. No consent or approval of, or filing with,
any governmental authority or other person not a party hereto is required for
the execution, delivery and performance by the Purchaser of this Agreement or
the consummation of the Transaction.
(d) The Purchaser is an "accredited investor" within the meaning of
Regulation D under the Securities Act. The Purchaser acknowledges that (i) the
Warrant is a "restricted security" for purposes of Rule 144 and (ii) the
Warrants have not been registered under the Securities Act and, therefore,
cannot be resold unless they are registered under the Securities Act and
applicable state securities laws or in a transaction exempt from or not subject
to the registration requirements of the Securities Act and applicable state
securities laws.
(e) The Purchaser is aware of the Issuer's business affairs and financial
condition, and has acquired sufficient information about the Issuer to reach an
informed and knowledgeable decision to acquire the Warrants. The Purchaser
acknowledges that neither the Seller or any of its agents, representatives,
officers, directors, partners, members or affiliates thereof has made any
representations and warranties of any nature or kind concerning the Warrants,
the Shares and/or the Issuer.
(f) If any opinion of counsel is required to be delivered to the Issuer
pursuant to any Transfer Restriction or otherwise in connection with the
transfer of the Warrants from Seller to Purchaser, the Purchaser shall cause
such opinion to be provided at its own expense.
5. Representation by Purchaser that it is aware that Xmark may have
Confidential Information
The Purchaser acknowledges, agrees and represents to Seller the following:
(i) The Purchaser is aware that Seller and Xmark Fund, L.P. (collectively,
the "Xmark Funds") may be in possession of certain nonpublic
information concerning the Company and the Warrants (the "Xmark
Information"), and that the Xmark Funds have agreed with the Company
to keep the Xmark Information confidential. The Purchaser acknowledges
that a reasonable investor could deem that the Xmark Information is
material to an investment decision, and that the Xmark Information
could be of an adverse nature to an investor in the Warrants. The
Purchaser is freely deciding to purchase the Warrants at the
agreed-upon price for its own reasons based on the information it
currently possesses, which it deems sufficient, notwithstanding that
it may lack access to the Xmark Information, to make its decision to
participate in the purchase and sale of the Warrants. The Purchaser
does not and will not request, desire or require either of the Xmark
Funds, now or in the future, to disclose any or all of the Xmark
Information to the Purchaser or any of its affiliates, agents or
representatives.
(ii) The Purchaser is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its purchase of and investment in
the Warrants. The Purchaser is aware that an investment in the
Warrants involves a high degree of risk and that the Purchaser may
lose the entire amount of its investment in the Warrants. The
Purchaser is able to bear the economic risk of its investment in the
Warrants and can afford the complete loss of such investment.
6. Purchaser Release and Waiver
The Purchaser agrees not to pursue and to release fully any potential suits,
claims, causes of action, remedies, damages and other actions whatsoever, at law
or in equity, against any of the Xmark Funds and their respective affiliates,
officers, directors, agents, employees, representatives and assigns, arising out
of the purchase of the Warrants or the nondisclosure of the Xmark Information to
the Purchaser. The Purchaser hereby acknowledges receipt of satisfactory
consideration for the agreements set forth in this paragraph, including but not
limited to the consummation of the purchase and sale of the Warrants at the
agreed-upon purchase price. The Purchase acknowledges and agrees that Seller is
relying on this Section 6 in engaging in the sale herein, and would not engage
in the sale of the Warrants in the absence of this Section 6.
7. Further Assurances. Each of the Purchaser and the Seller will, upon the
reasonable request of the other, execute and deliver all other such documents
and instruments reasonably deemed necessary or desirable by the other party to
fully effect the purchase and sale contemplated hereby.
8. Amendment. This Agreement may be amended, modified or supplemented but
only in a writing signed by the Seller and the Purchaser.
9. Notices. Any notice, request, instruction or other document to be given
hereunder by a party hereto (other than the Warrants to be delivered by the
Seller to the Purchaser pursuant to Section 2, which shall be delivered as
described therein) shall be in writing and shall be deemed to have been given,
(a) when received if given in person or by a courier or a courier service or (b)
on the date of transmission if sent by facsimile transmission:
(a) If to the Seller, addressed as follows:
Xmark Asset Management, LLC
152 West 57th Street, 21st Floor
New York, NY 10019
Attn: Mitchell Kaye
Facsimile: 212-247-1329
(b) If to the Purchaser, addressed as follows:
The Convertible Fund Offshore Ltd.
165 Beacon Lane
Jupiter, Florida 33469
Facsimile: 203-286-1728
or to such other person or address as a party hereto may designate for itself by
notice given as herein provided.
10. Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile transmission), each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (without reference to choice
OF law doctrine).
12. Expenses. Except as otherwise expressly provided herein, each party
hereto will bear its own expenses in connection with the purchase(s) and sale(s)
of the Warrants contemplated hereby, except that the Seller shall bear all
transfer and issuance taxes imposed on such purchase and sale.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between such parties with
respect to such subject matter.
14. Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the other
provisions hereof shall not be affected thereby.
15. Captions. The Section captions herein are for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
16. Specific Performance. The parties acknowledge that money damages will
not be a sufficient remedy for breach of this Agreement and that the parties
hereto may obtain specific performance or other injunctive relief, without the
necessity of posting a bond or security therefor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
THE CONVERTIBLE FUND OFFSHORE LTD.
By: /s/ Steve Seefeld
Name Steve Seefeld
Title
XMARK FUND, LTD.
By: /s/ Mitchell D. Kaye
Name: Mitchell D. Kaye
Title: Chief Investment Officer
Exhibit 7
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of January 24, 2005 (this
"Agreement"), is by and between Enable Growth Partners, L.P., a ______ limited
partnership (the "Purchaser"), and Xmark Fund, L.P., a Delaware limited
partnership (the "Seller").
WHEREAS, the Seller owns 74,025 shares of Series A-1 Convertible Preferred
Stock (the "Preferred Stock") of AeroGen Inc. (the "Issuer"); and
WHEREAS, the Issuer has granted Seller certain registration and
indemnification rights in connection with the registration of the shares of
Common Stock underlying the Preferred Stock owned by Seller (the "Rights"); and
WHEREAS, the Seller wishes to sell 23,688 shares (the "Preferred Shares")
of the Preferred Stock, and assign the Rights associated with such Preferred
Shares, to the Purchaser and the Purchaser is willing to purchase the Preferred
Shares from the Seller, and take the associated Rights by assignment.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements and warranties contained herein, the sufficiency of which as
consideration is hereby acknowledged, the parties agree as follows:
1. Definitions. When used herein, the following terms shall have the
indicated meanings:
"Encumbrance" means any pledge, hypothecation, assignment, lien,
restriction, charge, claim, security interest, option, preference, priority or
other preferential arrangement of any kind or nature whatsoever.
"Transfer Restriction" means, with respect to any security or other
property, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such security or other property or to
enforce the provisions thereof or of any document related thereto, whether set
forth in such security or other property itself or in any document related
thereto or arising by operation of law, including, without limitation, such
conditions or restrictions arising under federal, state or foreign securities
laws or under contract.
2. Sale and Purchase.
(a) Simultaneously herewith, the Seller is selling to the Purchaser, and
the Purchaser is purchasing from the Seller (the "Transaction"), the Preferred
Shares for an aggregate purchase price (the "Purchase Price") of $426,336.00 in
cash.
(b) Simultaneously herewith, the Seller is delivering to the Purchaser, at
the address set forth in Section 8 hereof, the Preferred Shares, duly endorsed.
(c) Simultaneously herewith, the Purchaser is delivering to the Seller the
Purchase Price by wire transfer of immediately available funds to the account
designed in writing by the Seller.
3. Representations, Warranties and Agreements of the Seller.
The Seller hereby represents, warrants and agrees on the date hereof, as
follows:
(a) The Seller has full power and authority to enter into this Agreement
and to consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance by the Seller of this Agreement
and consummation by the Seller of the Transaction do not and will not: (i)
violate any decree or judgment of any court or other governmental authority
applicable to or binding on the Seller; (ii) violate any provision of any
federal or state statute, rule or regulation which is, to the Seller's
knowledge, applicable to the Seller; or (iii) violate any contract to which the
Seller or any of its assets or properties are bound. To the Seller's knowledge,
no consent or approval of, or filing with, any governmental authority or other
person not a party hereto is required for the execution, delivery and
performance by the Seller of this Agreement or the consummation of the
Transaction, except for such consents or approvals of the Issuer required
pursuant to the terms of the Preferred Shares or any of the transaction
documents executed in connection with the Seller's acquisition of the Preferred
Shares.
(c) Seller paid full purchase price for, became beneficial owner of, and
acquired from the Issuer the Preferred Shares on a date that was at least thirty
(30) days prior to the date hereof.
(d) With respect to the Transaction, (a) the Seller is the record and
beneficial owner of the Preferred Shares, free and clear of any Encumbrances,
except for those Encumbrances imposed by securities laws generally; (b) the
Preferred Shares to be delivered are not subject to any Transfer Restriction,
other than (i) any restrictions, if any, set forth in the terms of the Preferred
Shares or the purchase agreement pursuant to which such Preferred Shares were
acquired and (ii) the restriction that the Preferred Shares and the shares of
the Issuer's common stock underlying the Preferred Shares have not been
registered under the Securities Act and, therefore, cannot be resold unless they
are registered under the Securities Act and applicable state securities laws in
a transaction exempt from or not subject to the registration requirements of the
Securities Act and applicable state securities laws (the "Permitted Securities
Law Restriction"); and (c) upon the transfer of the Preferred Shares to
Purchaser, Purchaser will acquire good and marketable title thereto (assuming
that Purchaser is a bona fide purchaser within the meaning of Section 8-302 of
the New York Uniform Commercial Code), and will be the legal and beneficial
owner of such Preferred Shares, free and clear of any Encumbrances or Transfer
Restrictions, other than the Permitted Securities Law Restriction.
(e) No proceedings relating to the Preferred Shares are pending or, to the
knowledge of the Seller, threatened before any court, arbitrator or
administrative or governmental body that would adversely affect the Seller's
right to transfer the Preferred Shares to the Purchaser.
(f) The Seller has provided or made available to the Purchaser upon
Purchaser's written request a copy of the Preferred Shares, as well as any other
information and documents reasonably requested by the Purchaser, and such
information provided to the Purchaser completely and accurately describes any
Transfer Restrictions applicable to the Preferred Shares.
4. Representations, Warranties and Agreement of the Purchaser.
The Purchaser hereby represents, warrants and agrees as of the date hereof,
as follows:
(a) The Purchaser is duly organized, validly existing and in good standing
in its jurisdiction of organization.
(b) The Purchaser has full power and authority to enter into this Agreement
and to consummate the Transaction. The execution, delivery and performance of
this Agreement by the Purchaser have been duly authorized by all necessary
corporate/company/partnership proceedings on the part of the Purchaser. This
Agreement has been duly and validly executed and delivered by the Purchaser and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect that affect the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific remedies.
(c) The execution, delivery and performance by the Purchaser of this
Agreement and consummation by the Purchaser of the Transaction do not and will
not: (i) violate any decree or judgment of any court or other governmental
authority applicable to or binding on the Purchaser; (ii) violate any provision
of any federal or state statute, rule or regulation which is, to the Purchaser's
knowledge, applicable to the Purchaser; (iii) violate any contract to which the
Purchaser is a party or by which the Purchaser or any of its assets or
properties are bound; or (iv) violate or conflict with any provision of the
charter or by-laws of the Purchaser. No consent or approval of, or filing with,
any governmental authority or other person not a party hereto is required for
the execution, delivery and performance by the Purchaser of this Agreement or
the consummation of the Transaction.
(d) The Purchaser is an "accredited investor" within the meaning of
Regulation D under the Securities Act. The Purchaser is acquiring the Preferred
Shares pursuant to the Transaction hereunder for its own account and not with a
view to the distribution thereof (within the meaning of the Securities Act) in
violation of applicable securities laws. Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the Preferred
Shares. The acquisition by Purchaser of the Preferred Shares shall constitute
confirmation of the representation by the Purchaser that Purchaser does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Preferred Shares. The Purchaser acknowledges that (i) each of the
Preferred Shares is a "restricted security" for purposes of Rule 144 and (ii)
the Preferred Shares, and the shares of the Issuer's common stock underlying
such Preferred Shares, have not been registered under the Securities Act and,
therefore, cannot be resold unless they are registered under the Securities Act
or in a transaction exempt from or not subject to the registration requirements
of the Securities Act.
(e) The Purchaser is aware of the Issuer's business affairs and financial
condition, and has acquired sufficient information about the Issuer to reach an
informed and knowledgeable decision to acquire the Preferred Shares.
(f) The Purchaser is aware that the Seller, Xmark Fund, Ltd. and Xmark
Asset Management, LLC (collectively, the "Xmark Funds") may be in possession of
certain nonpublic information concerning the Company and the Preferred Shares
(the "Xmark Information"), and that the Xmark Funds have agreed with the Company
to keep the Xmark Information confidential. The Purchaser acknowledges that a
reasonable investor could deem that the Xmark Information is material to an
investment decision, and that the Xmark Information could be of an adverse
nature to an investor in the Preferred Shares. The Purchaser is freely deciding
to purchase the Preferred Shares at the agreed-upon price for its own reasons
based on the information it currently possesses, which it deems sufficient,
notwithstanding that it may lack access to the Xmark Information, to make its
decision to participate in the purchase and sale of the Preferred Shares. The
Purchaser does not and will not request, desire or require any of the Xmark
Funds, now or in the future, to disclose any or all of the Xmark Information to
the Purchaser or any of its affiliates, agents or representatives.
(g) The Purchaser is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its purchase of and investment in the Preferred Shares. The
Purchaser is aware that an investment in the Preferred Shares involves a high
degree of risk and that the Purchaser may lose the entire amount of its
investment in the Preferred Shares. The Purchaser is able to bear the economic
risk of its investment in the Preferred Shares and can afford the complete loss
of such investment.
5. Purchaser Release and Waiver. The Purchaser agrees not to pursue and to
release fully any potential suits, claims, causes of action, remedies, damages
and other actions whatsoever, at law or in equity, against any of the Xmark
Funds and their respective affiliates, officers, directors, agents, employees,
representatives and assigns, arising out of the Transaction or the nondisclosure
of the Xmark Information to the Purchaser. The Purchaser hereby acknowledges
receipt of satisfactory consideration for the agreements set forth in this
paragraph, including but not limited to the consummation of the purchase and
sale of the Preferred Shares at the agreed-upon purchase price. The Purchaser
acknowledges and agrees that Seller is relying on this Section 5 in engaging in
the sale herein, and would not engage in the sale of the Preferred Shares in the
absence of this Section 5.
6. Conditions Precedent to Obligations of the Purchaser. The obligations of
the Purchaser are subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties of the Seller contained herein shall
be true and correct as of the date hereof.
(b) The Seller shall have complied with all of its covenants and agreements
contained herein to be performed by it on or prior to the date hereof.
7. Conditions Precedent to Obligations of the Seller. The obligations of
the Seller are subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties of the Purchaser contained herein
shall be true and correct as of the date hereof.
(b) The Purchaser shall have complied with all of its covenants and
agreements contained herein to be performed by it on or prior to the date
hereof.
(c) The Seller shall have received the wire transfer referred to in Section
8(c).
8. Settlement.
(a) Settlement of the Transaction shall take place on the date agreed upon
by the parties but in no event later than January 25, 2005 (the "Settlement
Date"). On the Settlement Date, subject to Sections 6 and 7 of this Agreement,
the Seller shall deliver to the Purchaser the Preferred Shares against payment
by the Purchaser of the Purchase Price. The purchase and sale of the Preferred
Shares and the assignment of all Rights, privileges, benefits and other rights
associated therewith, including without limitation rights to dividends that are
declared and payable on and after (but excluding dividends payable prior to) the
Settlement Date, shall be effective as of the Settlement Date.
(b) The Preferred Shares delivered to the Purchaser pursuant to this
Agreement shall be free and clear of all Encumbrances and Transfer Restrictions
other than the Permitted Securities Law Restriction. The transfer of the
Preferred Shares to the Purchaser shall have been registered on the books of the
Issuer and/or any applicable transfer agent. Unless otherwise instructed by the
Purchaser, the Preferred Shares should be delivered to:
(c) The Purchase Price shall be paid by wire transfer of immediately
available funds to the following bank account:
Chase Manhattan Bank
ABA #: 021-000-021
FBO: Citigroup - Smith Barney Inc
A/C#: 066-198038
FFC: Xmark Fund, L.P.
A/C#: 232-47100-17-265
(d) Each of the Purchaser and the Seller will, upon the reasonable request
of the other, execute and deliver all other such documents and instruments
reasonably deemed necessary or desirable by the other party to fully effect the
purchases and sales contemplated hereby.
9. Amendment. This Agreement may be amended, modified or supplemented but
only in a writing signed by the Seller and the Purchaser.
10. Notices. Any notice, request, instruction or other document to be given
hereunder by a party hereto (other than the documents to be delivered by the
Seller to the Purchaser pursuant to Section 7, which shall be delivered as
described therein) shall be in writing and shall be deemed to have been given,
(a) when received if given in person or by a courier or a courier service or (b)
on the date of transmission if sent by facsimile transmission:
(a) If to the Seller, addressed as follows:
Xmark Funds
301 Tresser Boulevard, Suite 1320
Stamford, CT 06901
Attn: Mitchell Kaye
T: 203-653-2500
F: 203-653-2501
(b) If to the Purchaser, addressed as follows:
[PLEASE PROVIDE]
or to such other person or address as a party hereto may designate for itself by
notice given as herein provided.
11. Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile transmission), each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (without reference to choice
OF law doctrine).
13. Expenses. Except as otherwise expressly provided herein, each party
hereto will bear its own expenses in connection with the purchase(s) and sale(s)
of the Warrant contemplated hereby, except that the Seller shall bear all
transfer and issuance taxes imposed on such purchase and sale.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between such parties with
respect to such subject matter.
15. Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the other
provisions hereof shall not be affected thereby.
16. Captions. The Section captions herein are for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
17. Specific Performance. The parties acknowledge that money damages will
not be a sufficient remedy for breach of this Agreement and that the parties
hereto may obtain specific performance or other injunctive relief, without the
necessity of posting a bond or security therefor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
ENABLE GROWTH PARTNERS, L.P.
By: /s/ Mitch Levine
Name (Please Print): Mitch Levine
Title Capacity: Managing Partner
XMARK FUND, L.P.
By: /s/ Mitchell D. Kaye
Name: Mitchell D. Kaye
Title: Chief Investment Officer
Exhibit 8
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of January 24, 2005 (this
"Agreement"), is by and between Enable Growth Partners, L.P., a ______ limited
partnership (the "Purchaser"), and Xmark Fund, Ltd, .a Cayman Island exempted
company ("Seller").
WHEREAS, the Seller owns 92,641 shares of Series A-1 Convertible Preferred
Stock (the "Preferred Stock") of AeroGen Inc. (the "Issuer"); and
WHEREAS, the Issuer has granted Seller certain registration and
indemnification rights in connection with the registration of the shares of
Common Stock underlying the Preferred Stock owned by Seller (the "Rights"); and
WHEREAS, the Seller wishes to sell 29,645 shares (the "Preferred Shares")
of the Preferred Stock, and assign the Rights associated with such Preferred
Shares, to the Purchaser and the Purchaser is willing to purchase the Preferred
Shares from the Seller, and take the associated Rights by assignment.
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements and warranties contained herein, the sufficiency of which as
consideration is hereby acknowledged, the parties agree as follows:
1. Definitions. When used herein, the following terms shall have the
indicated meanings:
"Encumbrance" means any pledge, hypothecation, assignment, lien,
restriction, charge, claim, security interest, option, preference, priority or
other preferential arrangement of any kind or nature whatsoever.
"Transfer Restriction" means, with respect to any security or other
property, any condition to or restriction on the ability of the holder thereof
to sell, assign or otherwise transfer such security or other property or to
enforce the provisions thereof or of any document related thereto, whether set
forth in such security or other property itself or in any document related
thereto or arising by operation of law, including, without limitation, such
conditions or restrictions arising under federal, state or foreign securities
laws or under contract.
2. Sale and Purchase.
(a) Simultaneously herewith, the Seller is selling to the Purchaser, and
the Purchaser is purchasing from the Seller (the "Transaction"), the Preferred
Shares for an aggregate purchase price (the "Purchase Price") of $533,664.00 in
cash.
(b) Simultaneously herewith, the Seller is delivering to the Purchaser, at
the address set forth in Section 8 hereof, the Preferred Shares, duly endorsed
(c) Simultaneously herewith, the Purchaser is delivering to the Seller the
Purchase Price by wire transfer of immediately available funds to the account
designed in writing by the Seller.
3. Representations, Warranties and Agreements of the Seller.
The Seller hereby represents, warrants and agrees on the date hereof, as
follows:
(a) The Seller has full power and authority to enter into this Agreement
and to consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
(b) The execution, delivery and performance by the Seller of this Agreement
and consummation by the Seller of the Transaction do not and will not: (i)
violate any decree or judgment of any court or other governmental authority
applicable to or binding on the Seller; (ii) violate any provision of any
federal or state statute, rule or regulation which is, to the Seller's
knowledge, applicable to the Seller; or (iii) violate any contract to which the
Seller or any of its assets or properties are bound. To the Seller's knowledge,
no consent or approval of, or filing with, any governmental authority or other
person not a party hereto is required for the execution, delivery and
performance by the Seller of this Agreement or the consummation of the
Transaction, except for such consents or approvals of the Issuer required
pursuant to the terms of the Preferred Shares or any of the transaction
documents executed in connection with the Seller's acquisition of the Preferred
Shares.
(c) Seller paid full purchase price for, became beneficial owner of and
acquired from the Issuer the Preferred Shares on a date that was at least thirty
(30) days prior to the date hereof.
(d) With respect to the Transaction, (a) the Seller is the record and
beneficial owner of the Preferred Shares, free and clear of any Encumbrances,
except for those Encumbrances imposed by securities laws generally; (b) the
Preferred Shares to be delivered are not subject to any Transfer Restriction,
other than (i) any restrictions, if any, set forth in the terms of the Preferred
Shares or the purchase agreement pursuant to which such Preferred Shares were
acquired and (ii) the restriction that the Preferred Shares and the shares of
the Issuer's common stock underlying the Preferred Shares have not been
registered under the Securities Act and, therefore, cannot be resold unless they
are registered under the Securities Act and applicable state securities laws in
a transaction exempt from or not subject to the registration requirements of the
Securities Act and applicable state securities laws (the "Permitted Securities
Law Restriction"); and (c) upon the transfer of the Preferred Shares to
Purchaser, Purchaser will acquire good and marketable title thereto (assuming
that Purchaser is a bona fide purchaser within the meaning of Section 8-302 of
the New York Uniform Commercial Code), and will be the legal and beneficial
owner of such Preferred Shares, free and clear of any Encumbrances or Transfer
Restrictions, other than the Permitted Securities Law Restriction.
(e) No proceedings relating to the Preferred Shares are pending or, to the
knowledge of the Seller, threatened before any court, arbitrator or
administrative or governmental body that would adversely affect the Seller's
right to transfer the Preferred Shares to the Purchaser.
(f) The Seller has provided or made available to the Purchaser upon
Purchaser's written request a copy of the Preferred Shares, as well as any other
information and documents reasonably requested by the Purchaser, and such
information provided to the Purchaser completely and accurately describes any
Transfer Restrictions applicable to the Preferred Shares.
4. Representations, Warranties and Agreement of the Purchaser.
The Purchaser hereby represents, warrants and agrees as of the date hereof,
as follows:
(a) The Purchaser is duly organized, validly existing and in good standing
in its jurisdiction of organization.
(b) The Purchaser has full power and authority to enter into this Agreement
and to consummate the Transaction. The execution, delivery and performance of
this Agreement by the Purchaser have been duly authorized by all necessary
corporate/company/partnership proceedings on the part of the Purchaser. This
Agreement has been duly and validly executed and delivered by the Purchaser and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect that affect the enforcement of creditors' rights
generally and by equitable limitations on the availability of specific remedies.
(c) The execution, delivery and performance by the Purchaser of this
Agreement and consummation by the Purchaser of the Transaction do not and will
not: (i) violate any decree or judgment of any court or other governmental
authority applicable to or binding on the Purchaser; (ii) violate any provision
of any federal or state statute, rule or regulation which is, to the Purchaser's
knowledge, applicable to the Purchaser; (iii) violate any contract to which the
Purchaser is a party or by which the Purchaser or any of its assets or
properties are bound; or (iv) violate or conflict with any provision of the
charter or by-laws of the Purchaser. No consent or approval of, or filing with,
any governmental authority or other person not a party hereto is required for
the execution, delivery and performance by the Purchaser of this Agreement or
the consummation of the Transaction.
(d) The Purchaser is an "accredited investor" within the meaning of
Regulation D under the Securities Act. The Purchaser is acquiring the Preferred
Shares pursuant to the Transaction hereunder for its own account and not with a
view to the distribution thereof (within the meaning of the Securities Act) in
violation of applicable securities laws. Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the Preferred
Shares. The acquisition by Purchaser of the Preferred Shares shall constitute
confirmation of the representation by the Purchaser that Purchaser does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Preferred Shares. The Purchaser acknowledges that (i) each of the
Preferred Shares is a "restricted security" for purposes of Rule 144 and (ii)
the Preferred Shares, and the shares of the Issuer's common stock underlying
such Preferred Shares, have not been registered under the Securities Act and,
therefore, cannot be resold unless they are registered under the Securities Act
or in a transaction exempt from or not subject to the registration requirements
of the Securities Act.
(e) The Purchaser is aware of the Issuer's business affairs and financial
condition, and has acquired sufficient information about the Issuer to reach an
informed and knowledgeable decision to acquire the Preferred Shares.
(f) The Purchaser is aware that the Seller, Xmark Fund, Ltd. and Xmark
Asset Management, LLC (collectively, the "Xmark Funds") may be in possession of
certain nonpublic information concerning the Company and the Preferred Shares
(the "Xmark Information"), and that the Xmark Funds have agreed with the Company
to keep the Xmark Information confidential. The Purchaser acknowledges that a
reasonable investor could deem that the Xmark Information is material to an
investment decision, and that the Xmark Information could be of an adverse
nature to an investor in the Preferred Shares. The Purchaser is freely deciding
to purchase the Preferred Shares at the agreed-upon price for its own reasons
based on the information it currently possesses, which it deems sufficient,
notwithstanding that it may lack access to the Xmark Information, to make its
decision to participate in the purchase and sale of the Preferred Shares. The
Purchaser does not and will not request, desire or require any of the Xmark
Funds, now or in the future, to disclose any or all of the Xmark Information to
the Purchaser or any of its affiliates, agents or representatives.
(g) The Purchaser is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its purchase of and investment in the Preferred Shares. The
Purchaser is aware that an investment in the Preferred Shares involves a high
degree of risk and that the Purchaser may lose the entire amount of its
investment in the Preferred Shares. The Purchaser is able to bear the economic
risk of its investment in the Preferred Shares and can afford the complete loss
of such investment.
5. Purchaser Release and Waiver. The Purchaser agrees not to pursue and to
release fully any potential suits, claims, causes of action, remedies, damages
and other actions whatsoever, at law or in equity, against any of the Xmark
Funds and their respective affiliates, officers, directors, agents, employees,
representatives and assigns, arising out of the purchase of the Preferred Shares
or the nondisclosure of the Xmark Information to the Purchaser. The Purchaser
hereby acknowledges receipt of satisfactory consideration for the agreements set
forth in this paragraph, including but not limited to the consummation of the
purchase and sale of the Preferred Shares at the agreed-upon purchase price. The
Purchaser acknowledges and agrees that Seller is relying on this Section 6 in
engaging in the sale herein, and would not engage in the sale of the Preferred
Shares in the absence of this Section 6.
6 Conditions Precedent to Obligations of the Purchaser. The obligations of
the Purchaser are subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties of the Seller contained herein shall
be true and correct as of the date hereof.
(b) The Seller shall have complied with all of its covenants and agreements
contained herein to be performed by it on or prior to the date hereof.
7. Conditions Precedent to Obligations of the Seller. The obligations of
the Seller are subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties of the Purchaser contained herein
shall be true and correct as of the date hereof.
(b) The Purchaser shall have complied with all of its covenants and
agreements contained herein to be performed by it on or prior to the date
hereof.
(c) The Seller shall have received the wire transfer referred to in Section
8(c).
8. Settlement.
(a) Settlement of the Transaction shall take place on the date agreed upon
by the parties but in no event later than January 25, 2005 (the "Settlement
Date"). On the Settlement Date, subject to Sections 6 and 7 of this Agreement,
the Seller shall deliver to the Purchaser the Preferred Shares against payment
by the Purchaser of the Purchase Price. The purchase and sale of the Preferred
Shares and the assignment of all Rights, privileges, benefits and other rights
associated therewith, including without limitation rights to dividends that are
declared and payable on and after (but excluding dividends payable prior to) the
Settlement Date, shall be effective as of the Settlement Date.
(b) The Preferred Shares delivered to the Purchaser pursuant to this
Agreement shall be free and clear of all Encumbrances and Transfer Restrictions
other than the Permitted Securities Law Restriction. The transfer of the
Preferred Shares to the Purchaser shall have been registered on the books of the
Issuer and/or any applicable transfer agent. Unless otherwise instructed by the
Purchaser, the Preferred Shares should be delivered to:
(c) The Purchase Price shall be paid by wire transfer of immediately
available funds to the following bank account:
Chase Manhattan Bank
ABA #: 021-000-021
FBO: Citigroup - Smith Barney Inc
A/C#: 066-198038
FFC: Xmark Fund, Ltd.
A/C#: 232-97167-12-265
(d) Each of the Purchaser and the Seller will, upon the reasonable request
of the other, execute and deliver all other such documents and instruments
reasonably deemed necessary or desirable by the other party to fully effect the
purchases and sales contemplated hereby.
9. Amendment. This Agreement may be amended, modified or supplemented but
only in a writing signed by the Seller and the Purchaser.
10. Notices. Any notice, request, instruction or other document to be given
hereunder by a party hereto (other than the documents to be delivered by the
Seller to the Purchaser pursuant to Section 7, which shall be delivered as
described therein) shall be in writing and shall be deemed to have been given,
(a) when received if given in person or by a courier or a courier service or (b)
on the date of transmission if sent by facsimile transmission:
(a) If to the Seller, addressed as follows:
Xmark Funds
301 Tresser Boulevard, Suite 1320
Stamford, CT 06901
Attn: Mitchell Kaye
T: 203-653-2500
F: 203-653-2501
(b) If to the Purchaser, addressed as follows:
[PLEASE PROVIDE]
or to such other person or address as a party hereto may designate for itself by
notice given as herein provided.
11. Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile transmission), each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (without reference to choice
OF law doctrine).
13. Expenses. Except as otherwise expressly provided herein, each party
hereto will bear its own expenses in connection with the purchase(s) and sale(s)
of the Warrant contemplated hereby, except that the Seller shall bear all
transfer and issuance taxes imposed on such purchase and sale.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between such parties with
respect to such subject matter.
15. Severability. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the other
provisions hereof shall not be affected thereby.
16. Captions. The Section captions herein are for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
17. Specific Performance. The parties acknowledge that money damages will
not be a sufficient remedy for breach of this Agreement and that the parties
hereto may obtain specific performance or other injunctive relief, without the
necessity of posting a bond or security therefor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
ENABLE GROWTH PARTNERS, L.P.
By: /s/ Mitch Levine
Name (Please Print): Mitch Levine
Title Capacity: Managing Partner
XMARK FUND, LTD.
By: /s/ Mitchell D. Kaye
Name: Mitchell D. Kaye
Title: Chief Investment Officer