UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 10, 2009
REGENERX BIOPHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-15070
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52-1253406
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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3 Bethesda Metro Center,
Suite 630, Bethesda, MD
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20814
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(301) 280-1992
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
The disclosure required by this item is included in Item 3.02 and is incorporated herein by this
reference.
Item 3.02 Unregistered Sales of Equity Securities.
On April 13, 2009, RegeneRx Biopharmaceuticals, Inc. (the “Company”) entered into a Securities
Purchase Agreement (the “Purchase Agreement”) with an affiliate of the Company’s largest
stockholder, Sigma-Tau Group (the “Purchaser”), with respect to the sale of 1,052,631 shares of its
common stock at a price per share of $0.57 (the “Shares”), for gross proceeds of $600,000 (the
“Offering”). In connection with the Offering, the Company has agreed to issue to the Purchaser a
warrant to purchase an additional 263,158 shares of its common stock at an exercise price of $0.91
per share (the “Warrant”). The Warrant will be immediately exercisable and will expire on April
30, 2012. The Offering is subject to customary closing conditions, and the Company expects to
close the Offering later in April 2009.
Under the terms of the Offering, the Purchaser has agreed to vote the Shares, and any additional
shares issued pursuant to the exercise of the Warrant, as directed by the Board of Directors of the
Company until April 30, 2012.
The Purchaser is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D
under the Securities Act of 1933, as amended (the “Securities Act”)), and the Company will sell the
securities in the Offering in reliance upon an exemption from registration contained in Section
4(2) and Rule 506 under the Securities Act. The securities to be sold in the Offering may not be
offered or sold in the United States absent registration or an applicable exemption from
registration requirements. There will be no discounts or brokerage fees associated with the
Offering. The net proceeds of the Offering will be used for working capital and other general
corporate purposes and to fund an ongoing clinical trial.
The form of Warrant and the definitive Purchase Agreement are filed herewith as Exhibits 10.1 and
10.2, respectively. The foregoing summaries are qualified in their entirety by the contents of such
exhibits, which are incorporated by reference herein.
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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(e) Pursuant to the Reduction (as defined in Item 8.01 below), on April 10, 2009, the Company and
each of J.J. Finkelstein, the Company’s chief executive officer, and C. Neil Lyons, the Company’s
chief financial officer, amended their employment agreements. Pursuant to these amendments, Mr.
Finkelstein’s annual base salary has been reduced from $299,000 to $194,350, and Mr. Lyons’ annual
base salary has been reduced from $202,537 to $131,649, in each case effective as of April 1, 2009.
In consideration for these salary reductions, the Company has granted to Mr. Finkelstein and Mr.
Lyons options to purchase 172,122 and 116,592 shares, respectively, of the Company’s common stock
on the terms described in Item 8.01 below (these options are included in the 698,138 option shares
described in Item 8.01 below).
The employment agreements of Messrs. Finkelstein and Lyons, as amended, are filed herewith as
Exhibits 10.3 and 10.4, respectively, and the foregoing descriptions of their employment
arrangements are qualified in their entirety by the contents of these agreements, as amended, which
agreements are incorporated by reference herein.
Item 7.01 Regulation FD Disclosure.
On April 13, 2009, the Company issued a press release announcing the Reduction and the execution of
the Purchase Agreement. The press release is attached hereto as Exhibit 99.1 and is incorporated
by reference herein.
The information being furnished pursuant to this Item 7.01 “Regulation FD Disclosure” and Exhibit
99.1 hereto shall not be deemed “filed” and shall not be deemed “soliciting material” for purposes
of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and shall
not be deemed to be incorporated by reference into any filing of the Company under the Securities
Act, or the Exchange Act, except if and as expressly set forth by a specific reference in such a
filing.
Item 8.01 Other Events.
On April 10, 2009, the Company implemented a cost reduction program (the “Reduction”), including a
35% reduction in salaries of substantially all executives and staff, with such reductions effective
as of April 1, 2009. In return, the executives and staff participating in the Reduction have
received, in the aggregate, options to purchase 698,138 shares of the Company’s common stock at a
price of $0.57 per share, one-third of which vest at the end of each remaining calendar quarter
during 2009. The Company’s board
of directors also approved a 35% reduction in compensation of non-employee directors. In return,
the Company’s non-employee directors have received, in the aggregate, options to purchase 64,157
shares of the Company’s common stock at a price of $0.57 per share, which also vest at the end of
each remaining calendar quarter during 2009. The Company expects to incur a non-cash compensation
expense in the aggregate of approximately $89,000 in each of the final three calendar quarters of
2009 as a result of these option grants.
As part of the Reduction, on April 10, 2009, the Company and Allan Goldstein, the Company’s
chairman and chief scientific advisor, amended his employment agreement. Pursuant to this
amendment, Dr. Goldstein’s annual salary has been reduced from $182,000 to $118,300, effective as
of April 1, 2009. In consideration for this salary reduction, the Company has granted to Dr.
Goldstein an option to purchase 104,770 shares of the Company’s common stock on the terms described
above (this option is also included in the 698,138 option shares described above). Dr. Goldstein’s
employment agreement, as amended, is filed herewith as Exhibit 10.5 and the foregoing description
of his employment arrangement is qualified in its entirety by the contents of the employment
agreement, as amended, which is incorporated by reference herein.
This Form 8-K contains certain forward-looking statements that involve risks and uncertainties that
could cause actual results to be materially different from historical results or from any future
results expressed or implied by such forward-looking statements. Examples of such forward-looking
statements include statements concerning the completion of the Offering and the amount and timing
of the non-cash compensation expense to be incurred as a result of the option grants described
herein. Factors that may cause actual results to differ materially from any future results
expressed or implied by any forward-looking statements include the approval of the listing of the
shares in the Offering by the NYSE Amex stock exchange, the final determination of the value of the
stock option awards under the Black-Scholes option pricing model and the potential acceleration or
termination of vesting of the options, under certain circumstances in accordance with the terms of
the options. Any forward-looking statements are made pursuant to Section 27A of the Securities Act
and Section 21E of the Exchange Act, and, as such, speak only as of the date made. The Company
undertakes no obligation to publicly update any forward-looking statements, whether as a result of
new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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10.1
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Form of Warrant
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10.2
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Securities Purchase Agreement, dated as of April 13, 2009.
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10.3
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Second Amended and Restated Employment Agreement, dated March 12, 2009, between the Company
and J.J. Finkelstein, as amended (incorporated by reference to Exhibit 10.5 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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10.4
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Second Amended and Restated Employment Agreement, dated March 31, 2009, between the Company
and C. Neil Lyons, as amended (incorporated by reference to Exhibit 10.6 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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10.5
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Second Amended and Restated Employment Agreement, dated March 11, 2009, between the Company
and Allan L. Goldstein, as amended (incorporated by reference to Exhibit 10.4 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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99.1
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Press Release issued April 13, 2009*
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This exhibit shall not be deemed “filed” and shall not be deemed “soliciting material” for
purposes of Section 18 of the Exchange Act, and shall not be deemed to be incorporated by reference
into any filing of the Company under the Securities Act, or the Exchange Act, except if and as
expressly set forth by a specific reference in such a filing.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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REGENERX BIOPHARMACEUTICALS, INC.
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By:
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/s/ J.J. Finkelstein
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J.J. Finkelstein
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President and Chief Executive Officer
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Date: April 16, 2009
EXHIBIT INDEX
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Exhibit
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Number
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Description
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10.1
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Form of Warrant
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10.2
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Securities Purchase Agreement, dated as of April 13, 2009.
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10.3
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Second Amended and Restated Employment Agreement, dated March 12, 2009, between the Company
and J.J. Finkelstein, as amended (incorporated by reference to Exhibit 10.5 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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10.4
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Second Amended and Restated Employment Agreement, dated March 31, 2009, between the Company
and C. Neil Lyons, as amended (incorporated by reference to Exhibit 10.6 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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10.5
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Second Amended and Restated Employment Agreement, dated March 11, 2009, between the Company
and Allan L. Goldstein, as amended (incorporated by reference to Exhibit 10.4 to the Company’s
Annual Report on Form 10-K filed with the SEC on April 15, 2009 (SEC File No. 1-15070)).
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99.1
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Press Release issued April 13, 2009*
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*
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This exhibit shall not be deemed “filed” and shall not be deemed “soliciting material” for
purposes of Section 18 of the Exchange Act, and shall not be deemed to be incorporated by reference
into any filing of the Company under the Securities Act, or the Exchange Act, except if and as
expressly set forth by a specific reference in such a filing.
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Exhibit 10.1
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
REGENERX BIOPHARMACEUTICALS, INC.
WARRANT TO PURCHASE COMMON STOCK
April ___, 2009
Void After April 30, 2012
THIS CERTIFIES THAT, for value received, Chaumiere-Consultadoria & Servicos SDC Unipessoal
LDA, or its permitted registered assigns (the “
Holder
”), is entitled to subscribe for and purchase
at the Exercise Price (defined below) from REGENERX BIOPHARMACEUTICALS, Inc., a Delaware
corporation (the “
Company
”) up to 263,158 shares of the common stock of the Company, par value
$0.001 per share (the “
Common Stock
”). This Warrant has been issued pursuant to that certain
Securities Purchase Agreement between the Company and the Holder dated as of April 13, 2009 (the
“
Purchase Agreement
”).
1. DEFINITIONS.
Capitalized terms used herein but not otherwise defined herein shall have their respective
meanings as set forth in the Purchase Agreement. As used herein, the following terms shall have
the following respective meanings:
(a) “
Business Day
” means a day, other than a Saturday or Sunday, on which banks in New York
City are open for the general transaction of business.
(b) “
Exercise Period
” shall mean the period commencing with the date hereof and ending at
5:30 p.m. New York City time on April 30, 2012.
(c) “
Exercise Price
” shall mean $0.91 per share, subject to adjustment pursuant to Section 5
below.
(d) “
Exercise Date
” shall have the meaning set forth in Section 3.1(b) hereof.
(e) “
Exercise Shares
” shall mean the shares of Common Stock issuable upon exercise of this
Warrant.
(f) “
Expiration Date
” shall mean 5:30 p.m. New York City time on April 30, 2012.
(g) “
Trading Day
” shall mean (i) any day on which the Common Stock is listed or quoted and
traded on its primary Trading Market, (ii) if the Common Stock is not then listed or quoted and
traded on any Trading Market, then a day on which trading occurs on the OTC Bulletin Board (or any
successor thereto), or (iii) if trading does not occur on the OTC Bulletin Board (or any successor
thereto), any Business Day.
(h) “
Trading Market
” means whichever of the New York Stock Exchange, the NYSE Amex, the NASDAQ
Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the OTC Bulletin Board
on which the Common Stock is listed or quoted for trading on the date in question.
2. Reserved.
3. EXERCISE OF WARRANT.
3.1. Exercise of Warrant.
(a) The rights represented by this Warrant may be exercised in whole or in part at any time
during the Exercise Period upon (i) delivery of an executed Notice of Exercise in the form attached
hereto to the Company at its address set forth on the signature page hereto (or at such other
address as it may designate by notice in writing to the Holder), (ii) surrender of this Warrant and
(iii) payment of the Exercise Price for the number of Exercise Shares as to which this Warrant is
being exercised. The delivery by (or on behalf of) the Holder of the Exercise Notice and the
applicable Exercise Price as provided above shall constitute the Holder’s certification to the
Company that its representations contained in Section 4.2(b), (c) and (d) of the Purchase Agreement
are true and correct as of the Exercise Date as if remade in their entirety (or, in the case of any
transferee Holder that is not a party to the Purchase Agreement, such transferee Holder’s
certification to the Company that such representations are true and correct as to such assignee
Holder as of the Exercise Date).
(b) With respect to each exercise of this Warrant pursuant to Section 3.1(a) above, the
Exercise Date shall be deemed to be the date the Exercise Price is received by the Company. The
Exercise Shares shall be deemed to have been issued, and Holder or any other person so designated
to be named therein shall be deemed to have become a holder of record of such shares for all
purposes, as of the Exercise Date. The person in whose name any certificate or certificates for
Exercise Shares are to be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the Exercise Date, irrespective of the date of delivery of such
certificate or certificates, except that, if the date of such surrender and payment is a date when
the stock transfer books of the Company are closed, such person shall be deemed to have become the
holder of such shares at the close of business on the next succeeding date on which the stock
transfer books are open.
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(c) Certificates for shares purchased hereunder shall be transmitted by the transfer agent of
the Company to the Holder by crediting the account of the Holder’s prime broker with the Depository
Trust Company through its Deposit Withdrawal Agent Commission
system if the Company is a participant in such system, and otherwise by physical delivery to
the address specified by the Holder in the Notice of Exercise within three business days from the
delivery to the Company of the Notice of Exercise, surrender of this Warrant and payment of the
aggregate Exercise Price as set forth above.
3.2. Issuance of New Warrants.
Upon any partial exercise of this Warrant, the Company, at
its expense, will forthwith and, in any event within five business days, issue and deliver to the
Holder a new warrant or warrants of like tenor, registered in the name of the Holder, exercisable,
in the aggregate, for the balance of the number of shares of Common Stock remaining available for
purchase under the Warrant.
3.3. Payment of Taxes and Expenses.
The Company shall pay any recording, filing, stamp or
similar tax which may be payable in respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable) representing, (i) any Exercise Shares
purchased upon exercise of this Warrant and/or (ii) new or replacement warrants in the Holder’s
name or the name of any transferee of all or any portion of this Warrant.
4. COVENANTS OF THE COMPANY.
4.1. Covenants as to Exercise Shares.
The Company covenants and agrees that all Exercise
Shares that may be issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes,
liens and charges with respect to the issuance thereof. The Company further covenants and agrees
that the Company will at all times during the Exercise Period, have authorized and reserved, free
from preemptive rights, a sufficient number of shares of Common Stock to provide for the exercise
of the rights represented by this Warrant. If at any time during the Exercise Period the number
of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of
this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes.
4.2. No Impairment.
Except to the extent as waived or consented to by the Holder, the
Company will not, by amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the taking of all such action as may be
necessary or appropriate in order to protect the exercise rights of the Holder against impairment.
4.3. Notices of Record Date and Certain Other Events.
In the event of any taking by the
Company of a record of the holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend (other than a cash dividend which is the
same as cash dividends paid in previous quarters) or other distribution, the Company shall mail to
the Holder, at least 10 days prior to the date on which any such record is to be taken for the
purpose of such dividend or distribution, a notice specifying such date.
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5. ADJUSTMENT OF EXERCISE PRICE AND EXERCISE SHARES.
(a) In the event of changes in the outstanding Common Stock of the Company by reason of stock
dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares,
separations, reorganizations, liquidations, consolidation, acquisition of the Company, or the like,
the number, class and type of shares available under the Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for the same
aggregate Exercise Price, the total number, class, and type of shares or other property as the
Holder would have owned had the Warrant been exercised prior to the event and had the Holder
continued to hold such shares until the event requiring adjustment. The form of this Warrant need
not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant.
(b) If at any time following delivery by Holder to the Company of a Notice of Exercise but
prior to issuance of the applicable Exercise Shares, the holders of Common Stock of the Company (or
any shares of stock or other securities at the time receivable upon the exercise of this Warrant)
shall have received or become entitled to receive, without payment therefor:
(i) Common Stock or any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or any rights or
options to subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution (other than a dividend or distribution covered in Section
5(a) above),
(ii) any cash paid or payable otherwise than as a cash dividend, or
(iii) Common Stock or additional stock or other securities or property (including cash)
by way of spinoff, split-up, reclassification, combination of shares or similar corporate
rearrangement (other than shares of Common Stock pursuant to Section 5(a) above),
then and in each such case, the Holder hereof will be entitled to receive, in addition to the
number of shares of Common Stock receivable pursuant to the Notice of Exercise, and without payment
of any additional consideration therefor, the amount of stock and other securities and property
(including cash in the cases referred to in clauses (ii) and (iii) above) which such Holder would
hold on the date of such exercise had such Holder been the holder of record of such Common Stock as
of the date on which holders of Common Stock received or became entitled to receive such shares or
all other additional stock and other securities and property.
(c) Upon the occurrence of each adjustment pursuant to this Section 5, the Company at its
expense will, at the written request of the Holder, promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a
statement of the adjusted Exercise Price and adjusted number or type of Exercise Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing the transactions
giving rise to such adjustments and showing in detail the facts upon which such adjustment is
based. Upon written request, the Company will promptly deliver a copy of each such certificate to
the Holder and to the Company’s transfer agent.
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6. FRACTIONAL SHARES.
No fractional shares shall be issued upon the exercise of this Warrant as a consequence of any
adjustment pursuant hereto. All Exercise Shares (including fractions) issuable upon exercise of
this Warrant may be aggregated for purposes of determining whether the exercise would result in the
issuance of any fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay
the Holder otherwise entitled to such fraction a sum in cash equal to the product resulting from
multiplying the then current fair market value of an Exercise Share by such fraction.
7. NO STOCKHOLDER RIGHTS.
Other than as provided in Section 3.1(a) or otherwise herein, this Warrant in and of itself
shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company.
8. TRANSFER OF WARRANT.
Subject to applicable laws and the restrictions on transfer set forth on the first page of
this Warrant and set forth in the Purchase Agreement, including, without limitation, Section 5
thereof, this Warrant and all rights hereunder are transferable, by the Holder in person or by duly
authorized attorney, upon delivery of this Warrant and the form of assignment attached hereto to
any transferee designated by Holder. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company and its counsel.
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT.
If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated
Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the
Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Company, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
10. NOTICES, ETC.
All notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by
confirmed telex or facsimile if sent during normal business hours of the recipient, if not, then on
the next business day, (c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the Company at the address listed on the signature page hereto and
to Holder at the applicable address set forth on the applicable signature page to the Purchase
Agreement or at such other address as the Company or Holder may designate by 10 days advance
written notice to the other parties hereto.
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11. ACCEPTANCE.
Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of
the terms and conditions contained herein.
12. GOVERNING LAW.
This Warrant and all rights, obligations and liabilities hereunder shall be governed by the
laws of the State of Delaware.
13. AMENDMENT OR WAIVER.
Any term of this Warrant may be amended or waived (either generally or in a particular
instance and either retroactively or prospectively) with the written consent of the Company and the
Holder. No waivers of any term, condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of April
_____, 2009.
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REGENERX BIOPHARMACEUTICALS, INC.
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By:
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Name:
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J.J. Finkelstein
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Title:
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President and Chief Executive Officer
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7
NOTICE OF EXERCISE
TO: REGENERX BIOPHARMACEUTICALS, INC.
(1) The undersigned hereby elects to purchase shares of the Common Stock of REGENERX
BIOPHARMACEUTICALS, INC. (the “
Company
”
)
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2) Please issue a certificate or certificates representing said shares of Common Stock of the
Company in the name of the undersigned or in such other name as is specified below:
(Name)
(Address)
(3) The undersigned represents that (i) the aforesaid shares of Common Stock are being
acquired for the account of the undersigned and not with a view to, or for resale in connection
with, the distribution thereof and that the undersigned has no present intention of distributing or
reselling such shares; (ii) the undersigned is aware of the Company’s business affairs and
financial condition and has acquired sufficient information about the Company to reach an informed
and knowledgeable decision regarding its investment in the Company; (iii) the undersigned is
experienced in making investments of this type and has such knowledge and background in financial
and business matters that the undersigned is capable of evaluating the merits and risks of this
investment and protecting the undersigned’s own interests; (iv) the undersigned understands that
the shares of Common Stock issuable upon exercise of this Warrant have not been registered under
the Securities Act of 1933, as amended (the “
Securities
Act
”
),
by reason of a specific exemption
from the registration provisions of the Securities Act, which exemption depends upon, among other
things, the bona fide nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid shares of Common Stock may not be sold
pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until
the undersigned has held the shares for the number of years prescribed by Rule 144, that among the
conditions for use of the Rule is the availability of current information to the public about the
Company; and (vi) the undersigned agrees not to make any disposition of all or any part of the
aforesaid shares of Common Stock unless and until there is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition is made in
accordance with said registration statement, or the undersigned has provided upon the Company’s
reasonable request, an opinion of counsel satisfactory to the Company, stating that such
registration is not required.
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(Date)
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(Signature)
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(Print name)
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8
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to
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Name:
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(Please Print)
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Address:
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(Please Print)
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Dated:
, 20
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Holder’s Signature:
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Holder’s Address:
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NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face
of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.
9
Exhibit 10.2
REGENERX BIOPHARMACEUTICALS, INC.
SECURITIES PURCHASE AGREEMENT
APRIL 13, 2009
Table of Contents
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Page
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SECTION 1. DEFINITIONS
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1
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SECTION 2. ISSUANCE AND SALE OF THE SECURITIES
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3
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SECTION 3. THE CLOSING
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3
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3.1 Closing
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3
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3.2 Deliveries by the Company
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4
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3.3 Deliveries by the Investor
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4
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SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
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5
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4.1 Representations and Warranties of the Company
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5
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4.2 Representations and Warranties of the Investor
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7
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SECTION 5. RESTRICTIONS ON TRANSFER
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8
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SECTION 6. VOTING
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8
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6.1 Common Stock
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8
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6.2 Legend
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9
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6.3 Rights of the Company
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9
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6.4 Schedule 13D
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9
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SECTION 7. RESERVED
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9
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SECTION 8. CONDITIONS TO CLOSING
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9
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8.1 Conditions to Closing by the Investor
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9
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8.2 Conditions to Closing by the Company
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10
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SECTION 9. MISCELLANEOUS
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10
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9.1 Waivers and Amendments
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10
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9.2 Costs and Expenses
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10
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9.3 Remedies Cumulative
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11
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9.4 Remedies Not Waived
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11
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9.5 Entire Agreement
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11
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9.6 Specific Performance
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11
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9.7 Governing Law
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11
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9.8 Notices
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12
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9.9 Counterparts
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12
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9.10 Successors and Assigns
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12
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9.11 Third Parties
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13
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9.12 Schedules and Exhibits
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13
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9.13 Headings
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13
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- i -
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT
(this “
Agreement
”), dated as of April 13, 2009, is entered
into by and between RegeneRx Biopharmaceuticals, Inc., a Delaware corporation (the “
Company
”), and
Chaumiere-Consultadoria & Servicos SDC Unipessoal LDA
(
hereinafter the “
Investor
”).
RECITALS
Whereas
, the Company has authorized the sale and issuance of (i) an aggregate of
1,052,631 shares of its Common Stock (the “
Shares
”) and (ii) a warrant, in substantially the form
attached hereto as
Exhibit A
(the “
Warrant
”), to purchase an aggregate of 263,158 shares
of its Common Stock (the “
Warrant Shares
” and, along with the Warrant and the Shares, the
“
Securities
”) for an aggregate purchase amount of no more than $600,000, pursuant to the terms of
this Agreement;
Whereas
, the Investor desires to purchase the Securities on the terms and conditions
set forth herein; and
Whereas
, the Company desires to issue and sell the Securities to the Investor on the
terms and conditions set forth herein.
AGREEMENT
Now, Therefore
, in consideration of the foregoing recitals and the mutual promises,
representations, warranties, and covenants hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1.
DEFINITIONS
The following terms when used in this Agreement shall have the following respective meanings:
“
Affiliate
” has the meaning set forth in Rule 501(b) of Regulation D.
“
Applicable Laws
” has the meaning set forth in Section 4.1(f) hereof.
“
Board of Directors
” means the Board of Directors of the Company.
“
Capital Stock
” means (i) with respect to any Person that is a corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting and whether common
or preferred) of such corporation and (ii) with respect to any Person that is not a corporation,
any and all partnership, membership, limited liability company or other equity interests of such
Person; and in each case, any and all warrants, rights or options to purchase any of the foregoing.
“
Certificate of Incorporation
” means the Certificate of Incorporation of the Company, as in
effect and on file with the Secretary of State of the State of Delaware on the date of this
Agreement.
“
Closing
” has the meaning set forth in Section 3.1 hereof.
“
Closing Date
” has the meaning set forth in Section 3.1 hereof.
“
Common Stock
” means the Common Stock of the Company, par value $0.001 per share.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Governmental Authority
” means the United States, any state, county or municipality, the
government of any foreign country, any subdivision of any of the foregoing or any authority,
department, commission, board, bureau, agency, court or instrumentality of any of the foregoing.
“
Holding Period
” has the meaning set forth in Section 5 hereof.
“
Knowledge of the Company
,” including the terms “
Know
,” “
Known
” and other derivatives thereof,
means, with respect to the Company, the actual knowledge, after reasonable investigation, of any
Responsible Officer.
“
Lien
” means any mortgage, lien, pledge, security interest, easement, conditional sale or
other title retention agreement or other encumbrance of any kind except for liens relating to taxes
that have accrued but are not yet payable which do not have a Material Adverse Effect.
“
Material Adverse Effect
” means a material adverse effect upon (i) the condition (financial or
otherwise), operations, business, properties or assets of the Company, (ii) the ability of the
Company to perform its obligations under this Agreement or any of the other agreements or documents
contemplated hereby to which it is a party or (iii) the legality, validity or enforceability of
this Agreement or any of the other agreements or documents contemplated hereby or the rights and
remedies of the Investor and the other parties hereunder and thereunder.
“
Material Agreements
” has the meaning set forth in Section 4.1(e) hereof.
“
Parties
” refers collectively to the Company and the Investor.
“
Person
” means an individual, corporation, partnership, joint venture, trust, unincorporated
organization, or Governmental Authority.
“
Purchase Price
” has the meaning set forth in Section 2 hereof.
“
Regulation D
” has the meaning set forth in Section 4.2(c) hereof.
“
Responsible Officer
” means, with respect to the Company, the President and Chief Executive
Officer, the Chief Financial Officer, the Vice President of Clinical and Regulatory
Affairs or the Chairman of the Board of Directors.
2
“
Returns
” has the meaning set forth in Section 4.1(i) hereof.
“
SEC
” means the U.S. Securities and Exchange Commission.
“
SEC Reports
” has the meaning set forth in Section 4.1(h)(i) hereof.
“
Securities
” has the meaning set forth in the Preamble.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Shares
” has the meaning set forth in the Preamble.
“
Stockholders
” has the meaning set forth in Section 4.1(b) hereof.
“
Tax
” or “
Taxes
” refers to any and all federal, state, national, local, foreign and other
taxes, assessments and other governmental charges, duties, levies, impositions and liabilities
relating to taxes, including taxes based upon or measured by gross receipts, income, profits,
sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all interest, penalties and
additions imposed with respect to such amounts and any obligations under any agreements or
arrangements with any other person with respect to such amounts and including any liability for
taxes of a predecessor entity.
“
Transfer
” has the meaning set forth in Section 5 hereof.
“
Warrant
” has the meaning set forth in the Preamble.
“
Warrant Shares
” has the meaning set forth in the Preamble.
SECTION 2.
ISSUANCE AND SALE OF THE SECURITIES
At the Closing, the Company shall issue and sell to the Investor and the Investor shall
purchase from the Company (i) 1,052,631 Shares at a purchase price equal to $0.57 per Share (the
“
Purchase Price
”), for aggregate gross proceeds of no more than $600,000 and (ii) a Warrant
to purchase 263,158 Warrant Shares, representing 25% of the Shares purchased, at an exercise price
of $0.91 per share.
SECTION 3.
THE CLOSING
3.1
Closing
The closing of the issuance and sale of the Securities pursuant to Section 2 hereof and
certain of the other transactions contemplated hereby (the “
Closing
”) shall take place at the
offices of Cooley Godward Kronish LLP, One Freedom Square, Reston Town Center, 11951 Freedom Drive,
Reston, Virginia 20190, within one business day following the satisfaction of the
conditions specified in Section 8 below, or at such other time or place as the Parties shall
mutually agree (the actual date being referred to herein as the “
Closing Date
”). The Parties agree
that the Closing may occur by facsimile signature and delivery and that the Parties need not appear
in person at the Closing.
3
3.2
Deliveries by the Company
At or prior to the Closing, the Company shall deliver or cause to be delivered to the Investor
the following items:
(a) One or more stock certificates evidencing a number of Shares purchased by the Investor
hereunder, registered in the name of such Investor and subject to the legends and other
restrictions set forth herein;
(b) a Warrant, executed by the Company and registered in the name of such Investor, pursuant
to which such Investor shall have the right to acquire the Warrant Shares issuable to such Investor
pursuant to Section 2 on the terms set forth therein;
(c) a copy of the Certificate of Incorporation certified by the Secretary of State of the
State of Delaware as of a date within thirty days prior to the Closing Date;
(d) a certificate of the Secretary of State of the State of Delaware as to the good standing
of the Company dated within thirty days prior to the Closing Date;
(e) a certificate of the Secretary or Assistant Secretary of the Company, in form and
substance satisfactory to counsel for the Investor, certifying that attached thereto are true and
correct copies of (i) the bylaws of the Company, and (ii) resolutions duly and validly adopted by
the Board of Directors authorizing the allotment and issuance of the Securities to the Investor,
execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby; and
(f) a counterpart of this Agreement duly executed by the Company.
3.3
Deliveries by the Investor
At or prior to the Closing, the Investor shall deliver or cause to be delivered to the Company
the following items:
(a) payment of the Purchase Price in immediately available funds by wire transfer to an
account designated in writing by the Company prior to the Closing Date;
(b) a fully completed and duly executed Accredited Investor Certification in the form attached
hereto as
Exhibit B
; and
(c) a counterpart of this Agreement duly executed by the Investor.
4
SECTION 4.
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1
Representations and Warranties of the Company
In order to induce the Investor to purchase the Securities it is purchasing hereunder, the
Company represents and warrants to the Investor as of the date hereof that:
(a)
Organization and Standing
. The Company is duly incorporated and validly existing
under the laws of the State of Delaware and has all requisite corporate power and authority to own
or lease its properties and assets and to conduct its business as it is presently being conducted.
(b)
Capitalization
. Immediately subsequent to the consummation of the transactions
contemplated by this Agreement, the authorized Capital Stock of the Company shall be as set forth
on
Schedule 4.1(b)
hereto. The outstanding shares of Capital Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and based in part on the
representations of the stockholders of the Company (the “
Stockholders
”) made in connection with the
issuance thereof, were issued in compliance with all applicable federal and state securities laws.
(c)
Capacity of the Company; Consents; Execution of Agreements
. The Company has all
requisite power, authority and capacity to enter into this Agreement and to perform the
transactions and obligations to be performed by it hereunder. The execution and delivery of this
Agreement and any agreements contemplated hereby by the Company, and the performance by the Company
of the transactions and obligations contemplated hereby and thereby, including, without limitation,
the issuance and delivery of the Securities to the Investor, has been duly authorized by all
requisite action of the Company and Stockholders. This Agreement has been duly executed and
delivered by a duly authorized officer of the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws of the United States (both state and federal), affecting the enforcement of creditors’
rights or remedies in general and general equity principles.
(d)
Status of the Shares and Warrant Shares; Reservation of Common Stock
. The Shares
and Warrant Shares to be issued and purchased hereunder, when issued by the Company to the Investor
and paid for by the Investor pursuant to the terms of this Agreement and the Warrant, will (i) be
duly authorized, validly issued, fully paid and nonassessable, (ii) based on the Investor’s
representations in Section 4.2, have been issued in compliance with all applicable United States
federal and state securities laws and (iii) be free and clear of all Liens. The Company has
available sufficient shares of Common Stock for issuance pursuant to the terms of this Agreement.
(e)
Conflicts; Defaults
. The execution and delivery of this Agreement by the Company
and the performance by the Company of the transactions and obligations contemplated hereby to be
performed by it will not (i) materially violate, conflict with, or constitute a default under any
of the terms or provisions of, the Certificate of Incorporation, the bylaws, or any provisions of,
or result in the acceleration of any obligation under, any material contract, note, debt
instrument, security agreement, or other instrument to which the Company is a party or by
which the Company, or any of their assets is bound (collectively, the “
Material Agreements
”);
(ii) result in the creation or imposition of any Liens or claims upon the Company’s assets or upon
the Company’s Common Stock; (iii) assuming the accuracy of the Investor’s representations in
Section 4.2, constitute a material violation of any law, statute, judgment, decree, order, rule, or
regulation of a Governmental Authority applicable to the Company; or (iv) constitute an event
which, after notice or lapse of time or both, would result in any of the foregoing. The Company is
not presently in violation of its Certificate of Incorporation or bylaws.
5
(f)
Compliance with Laws
. The Company is not in violation of, nor do any of its
respective operations violate in any respect, any statute, law, or regulation of any Governmental
Authority applicable to the Company (“
Applicable Laws
”), which violation would have a Material
Adverse Effect.
(g)
Litigation
. As of the date hereof: (i) the Company is not subject to any order of,
or written agreement or memorandum of understanding with, any Governmental Authority which would
have a Material Adverse Effect; (ii) there are no material actions, suits, claims, investigations,
or proceedings pending at law or in equity or before or by any Governmental Authority, or, to the
Knowledge of the Company, threatened, against the Company or any of its assets or properties or the
transactions contemplated by this Agreement, and to the Knowledge of the Company, there exist no
facts or circumstances which reasonably could be anticipated to result in any such action, suit,
claim, investigation, or proceeding; and (iii) no Person has asserted, and, to the Knowledge of the
Company, no Person has a valid basis upon which to assert, any claims against the Company that
would materially adversely affect the transactions contemplated by this Agreement or result in or
form the basis of any such action, suit, claim, investigation or proceeding. There is no material
action, suit, proceeding or investigation by the Company currently pending or which the Company
intends to initiate.
(h)
Securities Laws
.
(i) The Company has filed all forms, reports and documents with the SEC required to be filed
by it pursuant to the federal securities laws and the SEC rules and regulations thereunder, all of
which complied in all material respects with all applicable requirements of the Securities Act and
the Exchange Act (collectively, the “
SEC Reports
”). None of the SEC Reports, including, without
limitation, any financial statements or schedules included therein, at the time filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on the date of such
filing) contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in light of
circumstances under which they were made, not misleading.
(ii) Based on the Investor’s representations in Section 4.2, no consent, authorization,
approval, permit, or order of or filing with any Governmental Authority is required in order for
the Company to execute and deliver this Agreement or in order for the Company to offer, issue,
sell, or deliver the Securities. Based in part on the representations of the Investor and under
the circumstances contemplated hereby and under current laws and regulations, the offer, issuance,
sale and delivery of the Securities to the Investor is exempt from the registration requirements of
the Securities Act.
6
(iii)
Taxes
. The Company has timely filed or caused to be filed with the appropriate
taxing authority all federal, state, national, local and foreign returns, estimates, information
statements and reports (“
Returns
”) relating to Taxes required to be filed by the Company on or
prior to the Closing Date. The Returns have accurately reflected in all material respects and will
accurately reflect in all material respects all liability for Taxes of the Company for the periods
covered thereby.
4.2
Representations and Warranties of the Investor
The Investor hereby represents and warrants to the Company that as of the date hereof:
(a)
Investment Intent
. The Securities to be purchased by the Investor hereunder are
being purchased for its own account and not with the view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities Act. The Investor
understands that the Securities have not been registered under the Securities Act by reason of
their issuance in transactions exempt from the registration and prospectus delivery requirements of
the Securities Act pursuant to Section 4(2) thereof. The Investor further understands that the
certificates representing the Shares and any Warrant Shares that may be issued pursuant to the
exercise of the Warrant will bear the following legend and the Investor agrees that it will hold
such shares subject thereto:
“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
“SECURITIES ACT”
), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS.”
(b)
Capacity of the Investor; Execution of Agreement
. The Investor has all requisite
power, authority and capacity to enter into this Agreement, deliver the Purchase Price, and to
perform the transactions and obligations to be performed by it hereunder. This Agreement has been
duly authorized, executed and delivered by them and constitutes its valid and legally binding
obligation, enforceable in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws, both state and
federal, affecting the enforcement of creditors’ rights or remedies in general from time to time in
effect and the exercise by courts of equity powers or their application of principles of public
policy.
(c)
Accredited Investor
. The Investor is an “accredited investor” as defined in Rule
501(a) of Regulation D promulgated under the Securities Act (“
Regulation D
”).
7
(d)
Suitability and Sophistication
. (i) The Investor has such knowledge and experience
in financial and business matters that it is capable of independently evaluating the risks and
merits of purchasing the Securities; (ii) the Investor has independently evaluated the risks and
merits of purchasing the Securities and has independently determined that the Securities are a
suitable investment for it; and (iii) the Investor has sufficient financial resources to bear the
loss of their entire investment in the Securities.
(e)
Receipt of Information
. The Investor believes, after due inquiry and
investigation, that it has received all of the information that it considers necessary or
appropriate for deciding whether to purchase the Securities. The Investor further represents that
it has had an opportunity to ask questions and receive answers from the Company regarding the terms
and conditions of the offering of the Securities and the business, properties, prospects and
financial condition of the Company and to obtain additional information (to the extent the Company
possessed such information or could acquire it without unreasonable effort or expense) necessary to
verify the accuracy of any information furnished to the Investor. The foregoing, however, does not
limit or modify the representations and warranties of the Company in Section 4 of this Agreement or
the right of the Investor to rely thereon.
(f)
Independent Existence
. The Investor was not formed for the specific purpose of
purchasing the Securities.
SECTION 5.
RESTRICTIONS ON TRANSFER
The Investor agrees that the Investor shall not sell, assign, encumber, pledge, gift, transfer
or otherwise dispose of the Securities by any means, including, without limitation, any transfer or
disposition by means of a put or call option, security interest or any similar instrument
(collectively, a “
Transfer
”), from the date hereof through April 30, 2012 (the “
Holding Period
”).
Notwithstanding the foregoing, the Investor may Transfer the Securities to an Affiliate of the
Investor during the Holding Period provided that: (i) the Investor gives the Company written notice
of its intention to effect such Transfer, (ii) the Investor did not enter into this Agreement with
the intention of effecting such Transfer and (iii) the transferee becomes a party to this
Agreement. The Investor understands, acknowledges and agrees that the Company shall not be
required (y) to transfer on its books any Securities that have been sold or transferred in
violation of the provisions of this Section 5 or (z) to treat as the owner of the Securities, or
otherwise to accord voting or dividend rights to, any transferee to whom the Securities have been
transferred in contravention of this Agreement.
SECTION 6.
VOTING
6.1
Common Stock
. The Investor agrees to hold all Shares and any Warrant Shares
issued upon exercise of the Warrant for the term of the Holding Period subject to the voting
provisions contained herein.
8
6.2
Legend
. There shall be imprinted or otherwise placed on certificates representing
the Shares and any Warrant Shares issued upon exercise of the Warrant, the following restrictive
legend (the “
Legend
”):
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS
OF A SECURITIES PURCHASE AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING
AND DISPOSITION OF THE SHARES REPRESENTED HEREBY. A COPY OF SUCH SECURITIES PURCHASE
AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
6.3
Rights of the Company
. During the Holding Period, the Company, acting by and
through its Board of Directors, shall possess and shall have the exclusive right, except as
otherwise expressly limited in this Agreement, to exercise, in person or by nominees or proxies of
the Company, all voting rights and powers in respect of the Shares and any Warrant Shares issued
upon exercise of the Warrant, for any and every purpose, and to take part in or consent to any
Company or Stockholders’ action of any kind whatsoever, as absolute owner of such Shares and any
Warrant Shares issued upon exercise of the Warrant. The Investor hereby assigns to the Company all
voting rights that it otherwise might have had arising out of ownership of the Shares and any
Warrant Shares issued upon exercise of the Warrant, whether by operation of law or agreement. The
right to vote shall include the right to vote for and against, to consent, to abstain or to refrain
from attending any meeting with respect to the election of directors or any other matter to be
acted upon by the Stockholders of the Company at any meeting or by consent.
6.4
Schedule 13D
. The Investor hereby acknowledges and understands that the foregoing
voting restrictions may require the Parties to file an amended Schedule 13D pursuant to the
Exchange Act and the Parties hereby agree to provide each other with all reasonably necessary
assistance in order to effect such filing on a timely basis.
SECTION 7. Reserved.
SECTION 8.
CONDITIONS TO CLOSING
8.1
Conditions to Closing by the Investor
The obligations of the Investor to consummate the purchase of the Securities pursuant to
Section 2 hereof and certain of the transactions contemplated by this Agreement are subject to the
satisfaction on or prior to the Closing Date of the following conditions, any of which may be
waived in whole or in part in writing by the Investor:
(a) all representations and warranties of the Company contained in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing Date as though made anew as
of such date (unless another date is specified);
(b) the Company shall have delivered to the Investor the items required by Section 3.2 of this
Agreement;
(c) the Company shall have performed and complied with all agreements and conditions required
by this Agreement to be performed and complied with by it prior to or as of
the Closing Date; and
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(d) all pre-issuance registrations, qualifications, permits and approvals required, if any,
under applicable state securities laws or stock exchange listing rules for the lawful execution and
delivery of this Agreement and the offer, sale, issuance and delivery of the Securities shall have
been obtained.
8.2
Conditions to Closing by the Company
The obligations of the Company to consummate the issuance and sale of the Securities pursuant
to Section 2 hereof and certain of the transactions contemplated by this Agreement are subject to
the satisfaction on or prior to the Closing Date of the following conditions, any of which may be
waived in whole or in part in writing by the Company:
(a) all representations and warranties of the Investor contained in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing Date as though made anew as
of such date;
(b) the Investor shall have delivered to the Company the items required by Section 3.3 of this
Agreement;
(c) all pre-issuance registrations, qualifications, permits and approvals required, if any,
under applicable state securities laws or stock exchange listing rules for the lawful execution and
delivery of this Agreement and the offer, sale, issuance and delivery of the Securities shall have
been obtained; and
(d) the Investor shall have performed and complied with all agreements and conditions required
by this Agreement to be performed and complied with by them prior to or as of the Closing Date.
SECTION 9.
MISCELLANEOUS
9.1
Waivers and Amendments
This Agreement may be amended or modified in whole or in part only by a writing which makes
reference to this Agreement that is executed by the Investor and the Company. The obligations of
any Party hereunder may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party claimed to have given
the waiver; provided, however, that any waiver by any party of any violation of, breach of, or
default under any provision of this Agreement or any other agreement provided for herein shall not
be construed as, or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement or any other
agreement provided for herein.
9.2
Costs and Expenses
Each party agrees to pay its own costs and expenses in connection with the preparation,
execution and delivery of this Agreement and other instruments and documents to be delivered
hereunder and thereunder.
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9.3
Remedies Cumulative
No specific right, power, or remedy conferred by this Agreement shall be exclusive, and each
such right, power, or remedy shall be cumulative and in addition to every other right, power, or
remedy, whether conferred hereby or by any security of the Company or now or hereafter available,
at law or in equity, by statute or otherwise.
9.4
Remedies Not Waived
No course of dealing between the Company and the Investor, and no delay in exercising any
right, power, or remedy conferred hereby or by any security issued by the Company, or now or
hereafter available at law or in equity, by statute or otherwise, shall operate as a waiver of or
otherwise prejudice any such right, power, or remedy.
9.5
Entire Agreement
This Agreement and the other agreements and instruments expressly provided for herein,
together set forth the entire understanding of the parties hereto and supersede in their entirety
all prior contracts, agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, among the parties with respect to the subject matter hereof.
9.6
Specific Performance
The Company and the Investor acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in accordance with the
specific terms hereof or were otherwise breached. It is accordingly agreed that, to the fullest
extent permitted by law or equity, each of the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any other remedy to which
the parties may be entitled by law or equity.
9.7
Governing Law
This Agreement shall in all respects be governed by and construed in accordance with the
internal substantive laws of the State of Delaware without giving effect to the principles of
conflicts of law thereof.
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9.8
Notices
Any notice, request or other communication required or permitted hereunder shall be in writing
and be deemed to have been duly given (a) when personally delivered or sent by facsimile
transmission (the receipt of which is confirmed in writing), (b) one business day after being sent
by a nationally recognized overnight courier service or (c) three business days after being sent by
registered or certified mail, return receipt requested, postage prepaid, to the parties at their
respective addresses set forth below.
If to the Company:
RegeneRx Biopharmaceuticals, Inc.
3 Bethesda Metro Center
Suite 630
Bethesda, MD 20814
Attention: J.J. Finkelstein
Facsimile: 301-280-1991
With a copy, which shall not constitute notice, to:
Cooley Godward Kronish LLP
One Freedom Square, Reston Town Center
11951 Freedom Drive
Reston, VA 20190
Attention: Kenneth J. Krisko, Esq.
Facsimile: 703-456-8100
If to the Investor:
To the address set forth below the Investor’s name on the signature page of this Agreement
Any party by written notice to the others may change the address or the persons to whom notices or copies thereof shall be directed.
9.9
Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument.
9.10
Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns, subject to the restrictions on Transfer contained herein.
The Investor may, prior to the Closing, assign all or a portion of its right to purchase the
Securities to an Affiliate of the Investor.
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9.11
Third Parties
Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer
upon or give any Person other than the parties hereto any rights or remedies under or by reason of
this Agreement.
9.12
Schedules and Exhibits
The schedules and exhibits attached to this Agreement are incorporated herein and shall be
part of this Agreement for all purposes.
9.13
Headings
The headings in this Agreement are solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF
, the parties have duly executed, or have caused their duly authorized
officer or representative to execute, this Securities Purchase Agreement as of the date first above
written.
REGENERX BIOPHARMACEUTICALS, INC.
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By:
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/s/ J.J. Finkelstein
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Name:
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J.J. Finkelstein
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Title:
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President and Chief Executive Officer
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CHAUMIERE-CONSULTADORIA & SERVICOS SDC UNIPESSOAL LDA
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By:
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/s/ João Jose De Freitas Rodrigues
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Name:
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João Jose De Freitas Rodrigues
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Title:
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Director
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Exhibit A
FORM OF WARRANT
Exhibit B
ACCREDITED INVESTOR CERTIFICATION
The undersigned represents and warrants to RegeneRx Biopharmaceuticals, Inc. (the “
Company
”) that
the undersigned fits within each category marked below, and that for any category marked, he, she
or it has truthfully set forth any description required as provided for below. ALL INFORMATION
WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish any additional information
that the Company deems necessary in order to verify the answers set forth below.
(PLEASE MARK EACH CATEGORY APPLICABLE TO YOU)
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The undersigned is an individual (not a partnership, corporation, etc.) whose individual net worth, or
joint net worth with his or her spouse, presently exceeds
$1,000,000.
Explanation.
In calculating net worth you may include equity in personal property and real estate,
including your principal residence, cash, short-term investments, stock and securities. Equity in
personal property and real estate should be based on the fair market value of such property minus debt
secured by such property.
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The undersigned is an individual (not a partnership, corporation, etc.) who had an income in excess of
$200,000 in each of the two most recent years, or joint income with his or her spouse in excess of
$300,000 in each of those years (in each case, including foreign income, tax exempt income and full
amount of capital gains and losses, but excluding any income of other family members and any unrealized
capital appreciation), and has a reasonable expectation of reaching the same income level in the
current year.
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The undersigned is a director or executive officer of the Company.
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The undersigned is either: (a) a bank as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended (the “
Act
”); (b) a savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity; (c) a broker dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934; (d) an insurance company as
defined in Section 2(13) of the Act; (e) an investment company registered under the Investment Company
Act of 1940 or a business development company as defined in Section 2(a)(48) of the Act; (f) a small
business investment company licensed by the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958; (g) a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such a plan has total assets in excess of $5,000,000; or (h) an
employee benefit plan within the meaning of the Employee Retirement Income Security Act
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of 1974
(“
ERISA
”), if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of
ERISA, which is either a bank, savings and loan association, insurance company or registered investment
advisor, or if the employee benefit plan has total assets in excess of $5,000,000, or, if a
self-directed plan, with investment decisions made solely by persons that are accredited
investors, as defined in Rule (501)(a) promulgated under the Act.
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(describe entity)
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The undersigned is a private business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
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(describe entity)
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The undersigned is an organization within the meaning of Section
501(c)(3) of the Internal Revenue Code, a corporation, a business
trust, or a partnership, not formed for the specific purpose of
acquiring the Securities, with total assets in excess of
$5,000,000.
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(describe entity)
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The undersigned is a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the
Securities, whose investments are directed by a “
sophisticated
person
” as described in Rule 506(b)(2)(ii) promulgated under the
Act.
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The undersigned is an entity, all the equity owners of which are
“
accredited investors
” within one or more of the above categories.
If relying upon this category alone, each equity owner must
complete a separate copy of this Certificate
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(describe entity)
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The undersigned does not meet the criteria of any of the categories listed above.
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THE UNDERSIGNED UNDERSTANDS THAT THE COMPANY WILL RELY ON THE FOREGOING REPRESENTATIONS TO, AMONG
OTHER THINGS, MAINTAIN THE EXEMPTION FOR THE ISSUANCE OF THE SECURITIES FROM THE REQUIREMENT TO
REGISTER SUCH SECURITIES UNDER THE ACT.
The answers to the foregoing questions are correctly stated to the best of my knowledge,
information and belief. I hereby agree to notify the Company promptly of any changes in the
foregoing information.
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Dated: April 13, 2009
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Investor:
CHAUMIERE- CONSULTADORIA
& SERVICOS SDC UNIPESSOAL LDA
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By:
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/s/ João Jose De Freitas Rodrigues
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Name:
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João Jose De Freitas Rodrigues
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Title:
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Director
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