Exhibit 10.26


 


Execution Copy


 


SECURITIES
PURCHASE AGREEMENT


 


This Securities Purchase
Agreement (this “Agreement”) is
dated as of October 23, 2007, by and among Optimer Pharmaceuticals, Inc., a
Delaware corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).


 


RECITALS


 


A.            The Company and each Purchaser is executing
and delivering this Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule
506 of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act.


 


B.            Each Purchaser, severally and not jointly,
wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, that aggregate number of shares of common
stock, par value $0.001 per share (the “Common
Stock”), of the Company, set forth below such Purchaser’s name on
the signature page of this Agreement (which aggregate amount for all Purchasers
together shall be 4,600,000 shares of Common Stock and shall be collectively
referred to herein as the “Shares”).


 


C.            The Company has engaged Piper Jaffray &
Co. as its exclusive placement agent (the “Placement
Agent”) for the offering of the Shares on a “best efforts” basis.


 


D.            Contemporaneously with the execution and
delivery of this Agreement, the parties hereto are executing and delivering a
Registration Rights Agreement, substantially in the form attached hereto as Exhibit
A (the “Registration Rights Agreement”),
pursuant to which, among other things, the Company will agree to provide
certain registration rights with respect to the Shares under the Securities Act
and the rules and regulations promulgated thereunder and applicable state
securities laws.


 


NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and the Purchasers hereby agree as follows:


 


ARTICLE
I.

DEFINITIONS


 


1.1           Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:


 


“Action” means any action, suit, inquiry, notice of
violation, proceeding (including any partial proceeding such as a deposition)
or investigation pending or, to the Company’s Knowledge, threatened in writing
against the Company, any Subsidiary or any of their respective properties or
any officer, director or employee of the Company or any Subsidiary acting in
his or her capacity as an officer, director or employee before or by any
federal, state, county, local or foreign court, arbitrator, governmental or
administrative agency, regulatory authority, stock market, stock exchange or
trading facility.


 


“Affiliate” means, with respect to any Person, any other
Person that, directly or indirectly through one or more intermediaries,
Controls, is controlled by or is under common control with such Person,


 

















 


as
such terms are used in and construed under Rule 144. With respect to a
Purchaser, any investment fund or managed account that is managed on a
discretionary basis by the same investment manager as such Purchaser will be
deemed to be an Affiliate of such Purchaser.


 


“Agreement” shall have the meaning ascribed to such term in
the Preamble.


 


“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.


 


“Buy-In” has the meaning set forth in Section 4.1(f).


 


“Buy-In Price” has the meaning set forth in Section 4.1(f).


 


“Closing” means the closing of the purchase and sale of the
Shares pursuant to this Agreement.


 


“Closing
Bid Price”  means, for
any security as of any date, the last closing price for such security on the
Principal Trading Market, as reported by Bloomberg, or, if the Principal
Trading Market begins to operate on an extended hours basis and does not
designate the closing bid price then the last bid price of such security prior
to 4:00:00 p.m., New York City Time, as reported by Bloomberg, or, if the
Principal Trading Market is not the principal securities exchange or trading
market for such security, the last closing price of such security on the
principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing price of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing
bid price is reported for such security by Bloomberg, the average of the bid
prices of any market makers for such security as reported in the “pink sheets”
by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the
Closing Bid Price cannot be calculated for a security on a particular date on
any of the foregoing bases, the Closing Bid Price of such security on such date
shall be the fair market value as mutually determined by the Company and the
holder. If the Company and the holder are unable to agree upon the fair market
value of such security, then the Company shall, within two business days submit
via facsimile (a) the disputed determination to an independent, reputable
investment bank selected by the Company and approved by the holder or (b) the
disputed arithmetic calculation to the Company’s independent, outside
accountant. The Company shall cause at its expense the investment bank or the
accountant, as the case may be, to perform the determinations or calculations
and notify the Company and the holder of the results no later than ten business
days from the time it receives the disputed determinations or calculations. Such
investment bank’s or accountant’s determination or calculation, as the case may
be, shall be binding upon all parties absent demonstrable error. All such
determinations shall be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during the applicable
calculation period.


 


“Closing Date” means the Trading Day when all of the
Transaction Documents have been executed and delivered by the applicable
parties thereto, and all of the conditions set forth in Sections 2.1, 2.2, 5.1
and 5.2 hereof are satisfied, or such other date as the parties may agree.


 


“Commission” has the meaning set forth in the Recitals.


 


“Common Stock” has the meaning set forth in the Recitals, and
also includes any securities into which the Common Stock may hereafter be
reclassified or changed.


 


“Common Stock Equivalents” means any securities of the
Company or any Subsidiary which entitle the holder thereof to acquire at any
time Common Stock, including, without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time convertible
into or


 


2

















 


exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock or other
securities that entitle the holder to receive, directly or indirectly, Common
Stock.


 


“Company Counsel” means Cooley Godward Kronish LLP.


 


“Company Deliverables” has the meaning set forth in Section
2.2(a).


 


“Company’s Knowledge” means with respect to any statement
made to the knowledge of the Company, that the statement is based upon the
actual knowledge of the executive officers of the Company having responsibility
for the matter or matters that are the subject of the statement.


 


“Control” (including the terms “controlling”, “controlled by”
or “under common control with”) means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Disclosure Materials” has the meaning set forth in Section
3.1(h).


 


“Effective Date” means the date on which the initial
Registration Statement required by Section 2(a) of the Registration Rights
Agreement is first declared effective by the Commission.


 


“Effectiveness Deadline” means the date on which the initial
Registration Statement is required to be declared effective by the Commission
under the terms of the Registration Rights Agreement.


 


“Environmental Laws” has the meaning set forth in Section
3.1(l).


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations promulgated
thereunder.


 


“GAAP” means U.S. generally accepted accounting principles,
as applied by the Company.


 


“Indemnified Person” has the meaning set forth in Section
4.9(b).


 


“Intellectual Property” has the meaning set forth in Section
3.1(r).


 


“Irrevocable Transfer Agent Instructions” means, with respect
to the Company, the Irrevocable Transfer Agent Instructions, in the form of Exhibit
E, executed by the Company and delivered to and acknowledged in writing by
the Transfer Agent.


 


“Lien” means any lien, charge, claim, encumbrance, security
interest, right of first refusal, preemptive right or other restrictions of any
kind.


 


“Material Adverse Effect” means a material adverse effect on
the results of operations, assets, business or financial condition of the
Company, except that any of the following, either alone or in combination,
shall not be deemed a Material Adverse Effect: (i) effects caused by changes or
circumstances affecting general market conditions in the U.S. economy or which
are generally applicable to the industry in which the Company operates, (ii)
effects resulting from or relating to the announcement or disclosure of the
sale of the Securities or other transactions contemplated by this Agreement, or
(iii) effects caused by any event, occurrence or condition resulting from or relating
to the taking of any action in accordance with this Agreement.


 


“Material Contract” means any contract of the Company that
was filed as an exhibit to the


 


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SEC Reports pursuant to Item 601(b)(4) or
Item 601(b)(10) of Regulation S-K.


 


“Material Permits” has the meaning set forth in Section
3.1(p).


 


“New York Courts” means the state and federal courts sitting
in the City of New York, Borough of Manhattan.


 


“Outside Date” means the thirtieth day following the date of
this Agreement.


 


“Person” means an individual, corporation, partnership,
limited liability company, trust, business trust, association, joint stock
company, joint venture, sole proprietorship, unincorporated organization,
governmental authority or any other form of entity not specifically listed
herein.


 


“Principal Trading Market” means the Trading Market on which
the Common Stock is primarily listed on and quoted for trading, which, as of
the date of this Agreement and the Closing Date, shall be the NASDAQ Global
Market.


 


“Proceeding” means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.


 


“Purchase Price” means $7.80 per share.


 


“Purchaser Deliverables” has the meaning set forth in Section
2.2(b).


 


“Purchaser Party” has the meaning set forth in Section
4.9(a).


 


“Registration Rights Agreement” has the meaning set forth in
the Recitals.


 


“Registration Statement” means a registration statement
meeting the requirements set forth in the Registration Rights Agreement and
covering the resale by the Purchasers of the Registrable Securities (as defined
in the Registration Rights Agreement).


 


“Required Approvals” has the meaning set forth in Section
3.1(e).


 


“Rule 144” means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.


 


“SEC Reports” has the meaning set forth in Section 3.1(h).


 


“Secretary’s Certificate” has the meaning set forth in
Section 2.2(a)(vi).


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


“Short Sales” include, without limitation, all “short sales”
as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps, “put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated brokers.


 


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“Subscription Amount” means with respect to each Purchaser,
the aggregate amount to be paid for the Shares purchased hereunder as indicated
on such Purchaser’s signature page to this Agreement next to the heading “Aggregate
Purchase Price (Subscription Amount)”.


 


“Subsidiary” means any entity in which the Company, directly
or indirectly, owns capital stock or holds an equity or similar interest.


 


“Trading Affiliate” has the meaning set forth in Section
3.2(h).


 


“Trading Day” means (i) a day on which the Common Stock is
listed or quoted and traded on its Principal Trading Market (other than the OTC
Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market
(other than the OTC Bulletin Board), a day on which the Common Stock is traded
in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii)
if the Common Stock is not quoted on any Trading Market, a day on which the
Common Stock is quoted in the over-the-counter market as reported in the “pink
sheets” by Pink Sheets LLC (or any similar organization or agency succeeding to
its functions of reporting prices); provided,
that in the event that the Common Stock is not listed or quoted as set forth in
(i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.


 


“Trading Market” means whichever of the New York Stock
Exchange, the American Stock Exchange, 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.


 


“Transaction Documents” means this Agreement, the schedules
and exhibits attached hereto, the Registration Rights Agreement, the
Irrevocable Transfer Agent Instructions and any other documents or agreements
explicitly contemplated hereunder.


 


“Transfer Agent” means American Stock Transfer & Trust
Company, or any successor transfer agent for the Company.


 


ARTICLE
II.

PURCHASE AND SALE


 


2.1           Closing.


 


(a)           Amount.
Subject to the terms and conditions set forth in this Agreement, at the
Closing, the Company shall issue and sell to each Purchaser, and each Purchaser
shall, severally and not jointly, purchase from the Company, such number of
Shares equal to the quotient resulting from dividing (i) the Subscription
Amount for such Purchaser by (ii) the Purchase Price, rounded down to the
nearest whole Share.


 


(b)           Closing.
The Closing of the purchase and sale of the Shares shall take place at the
offices of Lowenstein Sandler PC, 1251 Avenue of the Americas, New York, New
York on the Closing Date or at such other locations or remotely by facsimile
transmission or other electronic means as the parties may mutually agree.


 


(c)           Form
of Payment. On the Closing Date, (i) the Company and the Placement Agent
shall instruct the Escrow Agent to wire the Escrow Amount in accordance with
the terms of Section 2.1(d), and (ii) the Company shall irrevocably instruct
the Transfer Agent to deliver to each Purchaser one or more stock certificates,
free and clear of all restrictive and other legends (except as expressly
provided in Section 4.1(b) hereof), evidencing the number of Shares such
Purchaser is purchasing as is set forth
on such


 


5

















 


Purchaser’s signature page
to this Agreement next to the heading “Number of Shares to be Acquired”,
within three (3) Business Days after the Closing, duly executed on behalf of
the Company and registered in the name of such Purchaser.


 


(d)           Escrow.


 


(i) Simultaneously with the execution and delivery of this Agreement by a
Purchaser, such Purchaser shall promptly cause a wire transfer of immediately
available funds (U.S. dollars) in an amount representing such Purchaser’s
Subscription Amount to be paid to a non-interest bearing escrow account of
Lowenstein Sandler PC (the “Escrow Agent”)
set forth on Exhibit G attached hereto (the aggregate amounts received
being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent
shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii)
below.


 


(ii)           The
Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance
with and subject to this Agreement, from the date of its receipt of the funds
constituting the Escrow Amount until the soonest of:


 


(A) in the case of the termination of this Agreement
in accordance with Section 6.17, in which case, if the Escrow Agent then holds
any portion of the Escrow Amount, then: (1) in the event of a termination by
the Company, the Escrow Agent shall return the portion of the Escrow Amount
received from each Purchaser which it then holds, to each such Purchaser, and
in the event of a termination by a Purchaser, the Escrow Agent shall return the
portion of the Escrow Amount received from such Purchaser which it then holds,
to such Purchaser, in accordance with written wire transfer instructions
received from the Purchaser; and (2) if the Escrow Agent has not received
written wire transfer instructions from any Purchaser before the 30th
day after such termination date, then the Escrow Agent may, in its sole and
absolute discretion, either (x) deposit that portion of the Escrow Amount to be
returned to such Purchaser in a court of competent jurisdiction on written
notice to such Purchaser, and the Escrow Agent shall thereafter have no further
liability with respect to such deposited funds, or (y) continue to hold such
portion of the Escrow Amount pending receipt of written wire transfer
instructions from such Purchaser or an order from a court of competent
jurisdiction; OR


 


(B) in the case of the Closing, receipt of written
instructions from the Company and the Placement Agent that the Closing shall
have been consummated, in which case, the Escrow Agent shall release the Escrow
Amount constituting the aggregate purchase price as follows: (1) to the
Placement Agent, the fees payable to such Placement Agent (which fees shall be
set forth in such instructions), and (2) the balance of the aggregate purchase
price to the Company.


 


(iii)          The Company and the Purchasers acknowledge
and agree for the benefit of the Escrow Agent (which shall be deemed to be a
third party beneficiary of this Section 2.1(d)) as follows:


 


(A)          The
Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers
or Placement Agent of this Agreement or any of the Transaction Documents or for
determining or compelling compliance therewith; (ii) is only responsible for
(A) holding the Escrow Amount in escrow pending receipt of written instructions
from the Company and the Placement Agent directing the release of the Escrow
Amount, and (B) disbursing the Escrow Amount in accordance with the written
instructions from the Company and the Placement Agent, each of the
responsibilities of the Escrow Agent in clause (A) and (B) is ministerial in
nature, and no implied duties or obligations of any kind shall be read into
this Agreement against or on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (iii) shall not be
obligated to take any legal or other action hereunder which might in its
judgment involve or cause it to incur any expense or liability unless it shall
have been furnished with indemnification acceptable


 


6

















 


to it, in its sole
discretion; (iv) may rely on and shall be protected in acting or refraining
from acting upon any written notice, instruction (including, without
limitation, wire transfer instructions, whether incorporated herein or provided
in a separate written instruction), instrument, statement, certificate, request
or other document furnished to it hereunder and believed by it to be genuine
and to have been signed or presented by the proper Person, and shall have no
responsibility for making inquiry as to, or for determining, the genuineness,
accuracy or validity thereof, or of the authority of the Person signing or
presenting the same; and (v) may consult counsel satisfactory to it, and the
opinion or advice of such counsel in any instance shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion or
advice of such counsel. Documents and written materials referred to in this
Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic
transmissions capable of being printed, whether or not they are in fact
printed; and any such e-mail or other electronic transmission may be deemed and
treated by the Escrow Agent as having been signed or presented by a Person if
it bears, as sender, the Person’s e-mail address.


 


(B)           The
Escrow Agent shall not be liable to anyone for any action taken or omitted to
be taken by it hereunder, except in the case of Escrow Agent’s gross negligence
or willful misconduct in breach of the Escrow Agent Duties. IN NO EVENT SHALL
THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL
DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF
THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND
REGARDLESS OF THE FORM OF ACTION.


 


(C)           The
Company hereby indemnifies and holds harmless the Escrow Agent from and against
any and all loss, liability, cost, damage and expense, including, without
limitation, reasonable counsel fees and expenses, which the Escrow Agent may
suffer or incur by reason of any action, claim or proceeding brought against
the Escrow Agent arising out of or relating to the performance of the Escrow
Agent Duties, except to the extent such action, claim or proceeding is
exclusively the result of the willful misconduct, bad faith or gross negligence
of the Escrow Agent.


 


(D)          The
Escrow Agent has acted as legal counsel to the Placement Agent in connection
with this Agreement and the other Transaction Documents, is merely acting as a
stakeholder under this Agreement and is, therefore, hereby authorized to
continue acting as legal counsel to the Placement Agent including, without
limitation, with regard to any dispute arising out of this Agreement, the other
Transaction Documents, the Escrow Amount or any other matter. The Purchasers
hereby expressly consents to permit the Escrow Agent to represent the Placement
Agent in connection with all matters relating to this Agreement, including,
without limitation, with regard to any dispute arising out of this Agreement,
the other Transaction Documents, the Escrow Amount or any other matter, and
hereby waives any conflict of interest or appearance of conflict or impropriety
with respect to such representation. Each of the Purchasers has consulted with
its own counsel specifically about this Section 2.1(d) to the extent they
deemed necessary, and has entered into this Agreement after being satisfied
with such advice.


 


(E)           The
Escrow Agent shall have the right at any time to resign for any reason and be
discharged of its duties as escrow agent hereunder (including without
limitation the Escrow Agent Duties) by giving written notice of its resignation
to the Company, the Placement Agent and the Purchasers at least ten (10) calendar
days prior to the specified effective date of such resignation. All obligations
of the Escrow Agent hereunder shall cease and terminate on the effective date
of its resignation and its sole responsibility thereafter shall be to hold the
Escrow Amount, for a period of ten (10) calendar days following the effective
date of resignation, at which time,


 


(I)            if
a successor escrow agent shall have been appointed and have accepted such
appointment in a writing to both the Company and the Purchasers, then


 


7

















 


upon written notice thereof given to each of the
Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor
escrow agent, and upon such delivery, the Escrow Agent shall have no further liability
or obligation; or


 


(II)           if
a successor escrow agent shall not have been appointed, for any reason
whatsoever, the Escrow Agent shall at its option in its sole discretion, either
(A) deliver the Escrow Amount to a court of competent jurisdiction selected by
the Escrow Agent and give written notice thereof to the Company, the Placement
Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow
pending written direction from the Company and the Placement Agent in form and
formality satisfactory to the Escrow Agent.


 


(F)           In
the event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions with respect to the Escrow Amount or
any portion thereunder which, in its sole discretion, are in conflict either
with other instructions received by it or with any provision of this Agreement,
the Escrow Agent shall have the absolute right to suspend all further
performance of its duties under this Agreement (except for the safekeeping of
such Escrow Amount) until such uncertainty or conflicting instructions have
been resolved to the Escrow Agent’s sole satisfaction by final judgment of a
court of competent jurisdiction, joint written instructions from the Company,
the Placement Agent and all of the Purchasers, or otherwise. In the event that
any controversy arises between the Company and one or more of the Purchasers or
any other party with respect to this Agreement or the Escrow Amount, the Escrow
Agent shall not be required to determine the proper resolution of such
controversy or the proper disposition of the Escrow Amount, and shall have the
absolute right, in its sole discretion, to deposit the Escrow Amount with the
clerk of a court selected by the Escrow Agent and file a suit in interpleader in
that court and obtain an order from that court requiring all parties involved
to litigate in that court their respective claims arising out of or in
connection with the Escrow Amount. Upon the deposit by the Escrow Agent of the
Escrow Amount with the clerk of such court in accordance with this provision,
the Escrow Agent shall thereupon be relieved of all further obligations and
released from all liability hereunder.


 


(G)           The
provisions of this Section 2.1(d) shall survive any termination of this
Agreement.


 


2.2           Closing
Deliveries.


 


(a)           On or
prior to the Closing, the Company shall issue, deliver or cause to be delivered
to each Purchaser the following (the “Company
Deliverables”):


 


(i)            this Agreement, duly executed by the Company;


 


(ii)           facsimile copies of one or more stock
certificates, free and clear of all restrictive and other legends (except as
provided in Section 4.1(b) hereof), evidencing the Shares subscribed for
by Purchaser hereunder, registered in the name of such Purchaser as set forth
on the Stock Certificate Questionnaire included as Exhibit B-2 hereto
(the “Stock Certificates”), with
the original Stock Certificates sent within three (3) Business Days of Closing;


 


(iii)          a legal opinion of Company Counsel, dated as
of the Closing Date and in the form attached hereto as Exhibit C,
executed by such counsel and addressed to the Purchasers and the Placement
Agent;


 


(iv)          the Registration Rights Agreement, duly
executed by the Company;


 


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(v)           duly executed Irrevocable Transfer Agent
Instructions acknowledged in writing by the Transfer Agent;


 


(vi)          a certificate of the Secretary of the Company
(the “Secretary’s Certificate”),
dated as of the Closing Date, (a) certifying the resolutions adopted by the
Board of Directors of the Company or a duly authorized committee thereof
approving the transactions contemplated by this Agreement and the other
Transaction Documents and the issuance of the Shares, (b) certifying the
current versions of the certificate or articles of incorporation, as amended,
and by-laws of the Company and (c) certifying as to the signatures and
authority of persons signing the Transaction Documents and related documents on
behalf of the Company, in the form attached hereto as Exhibit E;


 


(vii)         the Compliance Certificate referred to in
Section 5.1(g);


 


(viii)        a certificate evidencing the formation and
good standing of the Company in its jurisdiction of formation issued by the
Secretary of State (or comparable office) of such jurisdiction, as of a date
within five (5) Business Days of the Closing Date;


 


(ix)           a certificate evidencing the Company’s
qualification as a foreign corporation and good standing issued by the
Secretary of State (or comparable office) of each jurisdiction in which the
Company is qualified to do business as a foreign corporation, as of a date
within ten (10) Business Days of the Closing Date; and


 


(x)            a certified copy of the Certificate of
Incorporation, as certified by the Secretary of State of the State (or
comparable office) of such entity’s jurisdiction of formation, as of a date
within ten (10) Business Days of the Closing Date.


 


(b)           On or prior to the Closing, each Purchaser
shall deliver or cause to be delivered to the Company the following (the “Purchaser Deliverables”):


 


(i)            this Agreement, duly executed by such
Purchaser;


 


(ii)           its Subscription Amount, in United States
dollars and in immediately available funds, in the amount set forth as the “Purchase
Price” indicated below such Purchaser’s name on the applicable signature page
hereto under the heading “Aggregate Purchase Price (Subscription Amount)” by
wire transfer to the escrow account set forth on Exhibit G attached
hereto;


 


(iii)          the Registration Rights Agreement, duly
executed by such Purchaser;


 


(iv)          a fully completed and duly executed Selling
Stockholder Questionnaire in the form attached as Annex B to the Registration
Rights Agreement; and


 


(v)           a fully completed and duly executed
Accredited Investor Questionnaire, reasonably satisfactory to the Company, and
Stock Certificate Questionnaire in the forms attached hereto as Exhibits
B-1 and B-2, respectively.


 


ARTICLE
III.

REPRESENTATIONS AND WARRANTIES


 


3.1           Representations
and Warranties of the Company. The Company hereby
represents and warrants as of the date hereof and the Closing Date (except for
the representations and warranties that speak


 


9

















 


as of a specific date, which shall be made as
of such date), to each of the Purchasers and to the Placement Agent that, except
as set forth in the Schedules delivered herewith:


 


(a)           Subsidiaries. The Company has no direct or indirect
Subsidiaries other than those listed in Schedule 3.1(a) hereto. Except
as disclosed in Schedule 3.1(a) hereto, the Company owns, directly or indirectly,
all of the capital stock or comparable equity interests of each Subsidiary free
and clear of any and all Liens which could reasonably be expected to have a
Material Adverse Effect, and all the issued and outstanding shares of capital
stock or comparable equity interest of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities.


 


(b)           Organization and Qualification. The Company and each of its Subsidiaries is
an entity duly incorporated or otherwise organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization (as applicable), with the requisite corporate power and authority
to own or lease and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. The Company
and each of its Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have a Material Adverse Effect, and no
Proceeding has been instituted, is pending, or, to the Company’s Knowledge, has
been threatened in writing in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or
qualification.


 


(c)           Authorization; Enforcement; Validity. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents to which it is a party and
otherwise to carry out its obligations hereunder and thereunder. The Company’s
execution and delivery of each of the Transaction Documents to which it is a
party and the consummation by it of the transactions contemplated hereby and
thereby (including, but not limited to, the sale and delivery of the Shares)
have been duly authorized by all necessary corporate action on the part of the
Company, and no further corporate action is required by the Company, its Board
of Directors or its stockholders in connection therewith other than in
connection with the Required Approvals. Each of the Transaction Documents to
which it is a party has been (or upon delivery will have been) duly executed by
the Company and is, or when delivered in accordance with the terms hereof, will
constitute the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general , (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be limited by applicable law. Except for Material Contracts and as set forth on
Schedule 3.1(c) hereto, there are no stockholder agreements, voting
agreements, or other similar arrangements with respect to the Company’s capital
stock to which the Company is a party or, to the Company’s Knowledge, between
or among any of the Company’s stockholders.


 


(d)           No Conflicts. The execution, delivery and performance by
the Company of the Transaction Documents to which it is a party and the
consummation by the Company of the transactions contemplated hereby or thereby
(including, without limitation, the issuance of the Shares) do not and will not
(i) conflict with or violate any provisions of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or otherwise result in a violation
of the organizational documents of the Company, (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would result in a default) under, result in the creation of any Lien upon any
of the properties or assets of the Company or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of


 


10

















 


time or both) of, any
Material Contract, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including federal and state securities laws
and regulations and the rules and regulations, assuming the correctness of the
representations and warranties made by the Purchasers herein, of any
self-regulatory organization to which the Company or its securities are
subject, including all applicable Trading Markets), or by which any property or
asset of the Company is bound or affected, except in the case of clauses (ii)
and (iii) such as would not, individually or in the aggregate, have a Material
Adverse Effect.


 


(e)           Filings, Consents and Approvals. Neither the Company nor any of its
Subsidiaries is required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the
Transaction Documents (including the issuance of the Shares), other than (i)
the filing with the Commission of one or more Registration Statements in accordance
with the requirements of the Registration Rights Agreement, (ii) filings
required by applicable state securities laws, (iii) the filing of a Notice of
Sale of Securities on Form D with the Commission under Regulation D of the
Securities Act, (iv) the filing of any requisite notices and/or application(s)
to the Principal Trading Market for the issuance and sale of the Common Stock
and the listing of the Common Stock for trading or quotation, as the case may
be, thereon in the time and manner required thereby, (v) the filings required
in accordance with Section 4.7 of this Agreement and (vi) those that have been
made or obtained prior to the date of this Agreement (collectively, the “Required Approvals”).


 


(f)                            Issuance of the Shares. The Shares have been duly authorized and,
when issued and paid for in accordance with the terms of the Transaction
Documents, will be duly and validly issued, fully paid and nonassessable and
free and clear of all Liens, other than restrictions on transfer provided for
in the Transaction Documents or imposed by applicable securities laws, and
shall not be subject to preemptive or similar rights. Assuming the accuracy of
the representations and warranties of the Purchasers in this Agreement, the
Shares will be issued in compliance with all applicable federal and state
securities laws.


 


(g)                           Capitalization. The number of shares and type of all
authorized, issued and outstanding capital stock, options and other securities
of the Company (whether or not presently convertible into or exercisable or
exchangeable for shares of capital stock of the Company) has been set forth in
the SEC Reports and has changed since the date of such SEC Reports only due to
stock grants or other equity awards or stock option and warrant exercises that
do not, individually or in the aggregate, have a material effect on the issued
and outstanding capital stock, options and other securities. All of the
outstanding shares of capital stock of the Company are duly authorized, validly
issued, fully paid and non-assessable, have been issued in compliance in all
material respects with all applicable federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase any capital stock of the
Company. Except as specified in the SEC Reports: (i) no shares of the Company’s
outstanding capital stock are subject to preemptive rights or any other similar
rights; (ii) there are no outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares of
capital stock of the Company, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company, other than those issued or granted
pursuant to Material Contracts or equity or incentive plans or arrangements
described in the SEC Reports; (iii) there are no material outstanding debt
securities, notes, credit agreements, credit facilities or other agreements,
documents or instruments evidencing indebtedness of the Company or by which the
Company is bound; (iv) to the Company’s Knowledge, there are no financing
statements securing obligations in any material amounts, either singly or in
the aggregate, filed in connection


 


11

















 


with the Company; (v) there
are no agreements or arrangements under which the Company is obligated to register
the sale of any of their securities under the Securities Act (except the
Registration Rights Agreement); (vi) there are no outstanding securities or
instruments of the Company or which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company is or may become bound to redeem a security
of the Company; (vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Shares; (viii) the Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement; and (ix) the
Company has no liabilities or obligations required to be disclosed in the SEC
Reports  but not so disclosed in the SEC
Reports, other than those incurred in the ordinary course of the Company’s
businesses and which, individually or in the aggregate, do not or would not
have a Material Adverse Effect.


 


(h)           SEC Reports. The Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it under the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the twelve months preceding the
date hereof (or such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC
Reports” and together with this Agreement and the Schedules to this
Agreement (if any), the “Disclosure
Materials”), on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective filing dates, or to the extent
corrected by a subsequent restatement, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Reports, when filed, 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 the circumstances under
which they were made, not misleading.


 


(i)            Financial Statements.          The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at
the time of filing (or to the extent corrected by a subsequent restatement). Such
financial statements have been prepared in accordance with GAAP applied on a
consistent basis during the periods involved, except as may be otherwise
specified in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the
Company and its consolidated subsidiaries taken as a whole as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, year-end audit
adjustments.


 


(j)            Tax Matters. The Company (i) has prepared and filed all foreign, federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith, with respect to which adequate reserves have
been set aside on the books of the Company and (iii) has set aside on its books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply,
except, in the case of clauses (i) and (ii) above, where the failure to so pay
or file any such tax, assessment, charge or return would not have a Material
Adverse Effect.


 


(k)           Material Changes. Since the date of the latest financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports or as set forth in Schedule 3.1(k) hereto, (i) there
have been no events, occurrences or developments that have had or would
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, (ii) the Company has not


 


12

















 


incurred any material
liabilities (contingent or otherwise) other than (A) trade payables, accrued
expenses and other liabilities incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or required to be
disclosed in filings made with the Commission, (iii) the Company has not
altered materially its method of accounting or the manner in which it keeps its
accounting books and records, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock (other than in connection with repurchases of unvested stock
issued to employees of the Company), (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except Common Stock issued in
the ordinary course as dividends on outstanding preferred stock or issued
pursuant to existing Company stock option or stock purchase plans or executive
and director corporate arrangements disclosed in the SEC Reports and (vi) there
has not been any material change or amendment to, or any waiver of any material
right by the Company under, any Material Contract under which the Company or
any of its Subsidiaries is bound or subject. Except for the transactions
contemplated by this Agreement or as set forth in Schedule 3.1(k)
hereto, no event, liability or development has occurred or exists with respect
to the Company or its Subsidiaries or their respective business, properties,
operations or financial condition that would be required to be disclosed by the
Company under applicable securities laws at the time this representation is
made that has not been publicly disclosed at least one Trading Day prior to the
date that this representation is made.


 


(l)            Environmental Matters. To the Company’s Knowledge, neither the
Company nor any of its Subsidiaries (i) is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), (ii) owns or
operates any real property contaminated with any substance that is in violation
of any Environmental Laws, (iii) is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or (iv) is subject to any
claim relating to any Environmental Laws; which violation, contamination,
liability or claim has had or would have, individually or in the aggregate, a
Material Adverse Effect; and, to the Company’s Knowledge, there is no pending
or threatened investigation that might lead to such a claim.


 


(m)          Litigation. To the Company’s Knowledge, there is no Action which (i) adversely
affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Shares or (ii) except as specifically disclosed in
the SEC Reports, could, if there were an unfavorable decision, individually or
in the aggregate, have a Material Adverse Effect. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any of its Subsidiaries under the Exchange
Act or the Securities Act.


 


(n)           Employment Matters. No material labor dispute exists or,
to the Company’s Knowledge, is imminent with respect to any of the employees of
the Company which would have a Material Adverse Effect. None of the Company’s
employees is a member of a union that relates to such employee’s relationship
with the Company, and neither the Company nor any of its Subsidiaries is a
party to a collective bargaining agreement, and the Company and each Subsidiary
believes that its relationship with its employees is good. No executive officer
of the Company (as defined in Rule 501(f) of the 1933 Act) has notified the
Company that such officer intends to leave the Company or otherwise terminate
such officer’s employment with the Company. To the Company’s Knowledge, it is
in compliance with all U.S. federal, state, local and foreign laws and regulations
relating to employment and employment practices, terms and conditions of
employment and wages and hours, except where the failure to be in compliance
would not, individually or in the aggregate, have a Material Adverse Effect.


 


(o)           Compliance. Neither the Company nor any of its Subsidiaries (i) is in default under
or in violation of (and no event has occurred that has not been waived that,
with notice or lapse of time or


 


13

















 


both, would result in a default
by the Company or any of its Subsidiaries under), nor has the Company or any of
its Subsidiaries received written notice of a claim that it is in default under
or that it is in violation of, any Material Contract (whether or not such
default or violation has been waived), (ii) is in violation of any order of
which the Company has been made aware in writing of any court, arbitrator or
governmental body having jurisdiction over the Company or its properties or
assets, or (iii) is in violation of, or in receipt of written notice that it is
in violation of, any statute, rule or regulation of any governmental authority
applicable to the Company, except in each case as would not, individually or in
the aggregate, have a Material Adverse Effect.


 


(p)           Regulatory Permits. The Company possesses or has applied for
all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct its
business as currently conducted and as described in the SEC Reports, except
where the failure to possess such permits, individually or in the aggregate,
has not and would not have, individually or in the aggregate, a Material
Adverse Effect (“Material Permits”),
and (i) neither the Company nor any of its Subsidiaries has received any notice
in writing of proceedings relating to the revocation or material adverse
modification of any such Material Permits and (ii) the Company is unaware of
any facts or circumstances that would give rise to the revocation or material
adverse modification of any Material Permits.


 


(q)           Title to Assets. The Company and its Subsidiaries do
not own any real property. The Company and its Subsidiaries have good and
marketable title to all tangible personal property owned by them which is
material to the business of the Company and its Subsidiaries, taken as whole,
in each case free and clear of all Liens except such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and any of its Subsidiaries.
Any real property and facilities held under lease by the Company and any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
Subsidiaries.


 


(r)            Patents and Trademarks. To the Company’s Knowledge, the Company and
its Subsidiaries own, possess, license or have other rights to use all foreign
and domestic patents, patent applications, trade and service marks, trade and
service mark registrations, trade names, copyrights, inventions, trade secrets,
technology, Internet domain names, know-how and other intellectual property
(collectively, the “Intellectual Property”)
necessary for the conduct of their respective businesses as now conducted or as
proposed to be conducted. Except as set forth in the SEC Reports and except
where such violations or infringements would not have, either individually or
in the aggregate, a Material Adverse Effect, (a) to the Company’s
Knowledge, the conduct of its business as presently conducted does not infringe
on the Intellectual Property of any third party; (b) to the Company’s
Knowledge, there is no infringement by third parties of any such Intellectual
Property; (c) to the Company’s Knowledge, there is no pending or threatened
action, suit, proceeding or claim by others challenging the Company’s and its
Subsidiaries’ rights in or to any such Intellectual Property, and the Company
is unaware of any facts which would form a reasonable basis for any such claim;
(d) to the Company’s Knowledge, there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property; and (e) to the Company’s Knowledge, there is no pending
or threatened action, suit, proceeding or claim by others that the Company
and/or any Subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others.


 


(s)           Insurance. The Company and each of the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as the Company believes to be prudent and customary in the businesses
and locations in which the Company and the Subsidiaries are engaged. Neither
the Company nor any of its Subsidiaries has received any notice of cancellation
of any such insurance, nor, to the Company’s Knowledge, will it or any
Subsidiary be unable to


 


14

















 


renew their respective
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.


 


(t)            Transactions With Affiliates and Employees. Except as set forth in the SEC Reports and
other than the grant of stock options or other equity awards that are not
individually or in the aggregate material in amount, none of the officers or
directors of the Company and, to the Company’s Knowledge, none of the employees
of the Company, is presently a party to any transaction with the Company or to
a presently contemplated transaction (other than for services as employees,
officers and directors) that would be required to be disclosed pursuant to Item
404 of Regulation S-K promulgated under the Securities Act.


 


(u)           Internal Accounting Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset and liability accountability, (iii) access to assets or incurrence of
liabilities is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets and
liabilities is compared with the existing assets and liabilities at reasonable
intervals and in the Company’s good faith judgment appropriate action is taken
with respect to any differences.


 


(v)           Sarbanes-Oxley; Disclosure Controls. To the Company’s Knowledge, the Company is
in compliance in all material respects with all of the provisions of the
Sarbanes-Oxley Act of 2002 which are applicable to it, except where such
noncompliance would not have, individually or in the aggregate, a Material
Adverse Effect. The Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act).


 


(w)          Certain Fees. No person or entity will have, as a result
of the transactions contemplated by this Agreement, any valid right, interest
or claim against or upon the Company or a Purchaser for any commission, fee or
other compensation pursuant to any agreement, arrangement or understanding
entered into by or on behalf of the Company, other than the Placement Agent
with respect to the offer and sale of the Shares (which placement agent fees
are being paid by the Company). The Company shall indemnify, pay, and hold each
Purchaser harmless against, any liability, loss or expense (including, without
limitation, attorneys’ fees and out-of-pocket expenses) arising in connection
with any such right, interest or claim.


 


(x)            Private Placement. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2 of this Agreement and
the accuracy of the information disclosed in the Accredited Investor
Questionnaires, no registration under the Securities Act is required for the
offer and sale of the Shares by the Company to the Purchasers under the
Transaction Documents.


 


(y)           Registration
Rights. Other than as set forth in the SEC Reports and other than each of
the Purchasers or as set forth in Schedule
3.1(y) hereto, no Person has any right to cause the Company to
effect the registration under the Securities Act of any securities of the
Company other than those securities which are currently registered on an
effective registration statement on file with the Commission.


 


(z)            No
Integrated Offering. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, none of the Company,
its Subsidiaries nor, to the Company’s Knowledge, any of its Affiliates or any
Person acting on its behalf has, directly or indirectly, at any time within the
past six months, made any offers or sales of any Company security or solicited
any offers to buy any security under circumstances that would (i) eliminate the
availability of the exemption from registration under Regulation D under the
Securities Act in connection with the offer and sale by the Company of the
Shares as contemplated hereby or (ii) cause the offering of the Shares pursuant
to the Transaction Documents


 


15

















 


to be integrated with prior offerings by the Company
for purposes of any applicable law, regulation or stockholder approval
provisions, including, without limitation, under the rules and regulations of
any Trading Market on which any of the securities of the Company are listed or
designated.


 


(aa)         Listing and Maintenance Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to terminate the registration of the Common Stock
under the Exchange Act nor has the Company received any notification that the
Commission is contemplating terminating such registration. The Company has not,
in the 12 months preceding the date hereof, received written notice from any
Trading Market on which the Common Stock is listed or quoted to the effect that
the Company is not in compliance with the listing or maintenance requirements
of such Trading Market. The Company is in compliance in all material respects
with the listing and maintenance requirements for continued trading of the
Common Stock on the Principal Trading Market.


 


(bb)         Investment Company. Neither the Company nor any of its
Subsidiaries is required to be registered as, and is not an Affiliate of, and
immediately following the Closing will not be required to register as, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.


 


(cc)         Questionable Payments. To the Company’s
Knowledge, neither the Company
nor any of its Subsidiaries, nor any directors, officers, employees, agents or
other Persons acting at the direction of the Company has, in the course of its
actions for, or on behalf of, the Company: (a) directly or indirectly, used any
material corporate funds for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to foreign or domestic political activity; (b)
made any material direct or indirect unlawful payments to any foreign or
domestic governmental officials or employees or to any foreign or domestic
political parties or campaigns from corporate funds; (c) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as
amended, or (d) made any other material unlawful bribe, rebate, payoff,
influence payment, kickback or other material unlawful payment to any foreign
or domestic government official or employee.


 


(dd)         Application of Takeover Protections; Rights
Agreements. The Company and
its board of directors have taken all necessary action, if any, in order to
render inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s charter documents or the laws of
its state of incorporation that is applicable to any of the Purchasers as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including, without
limitation, the Company’s issuance of the Shares and the Purchasers’ ownership
of the Shares. The Company has not adopted a stockholder rights plan or similar
arrangement relating to accumulations of beneficial ownership of Common Stock or
a change in control of the Company.


 


(ee)         Disclosure. To the Company’s Knowledge, no event or circumstance has occurred or
information exists with respect to the Company or any of its Subsidiaries or
its or their business, properties, operations or financial conditions, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed (assuming for this purpose that the Company’s reports filed under the
Exchange Act are being incorporated into an effective registration statement
filed by the Company under the Securities Act), except for the announcement of
this Agreement and related transactions.


 


(ff)           Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company (or any Subsidiary) and an unconsolidated or
other off balance sheet


 


16

















 


entity that is required to be disclosed by the Company
in its Exchange Act filings and is not so disclosed and would have a Material
Adverse Effect.


 


(gg)         Acknowledgment
Regarding Purchasers’ Purchase of Shares.  The Company acknowledges
and agrees that each of the Purchasers is acting solely in the capacity of an
arm’s length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby.  The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given by any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Shares.


 


(hh)         Regulation
M Compliance.  In the last thirty days, the Company has not, and to
the Company’s Knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of any of the Shares, (ii) sold, bid for, purchased, or paid any
compensation for soliciting purchases of, any of the securities of the Company
or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company, other than, in the
case of clauses (ii) and (iii) compensation paid to the Placement Agent in connection
with the placement of the Shares.


 


(ii)           PFIC.
Neither the Company nor any Subsidiary is or intends to become a “passive
foreign investment company” within the meaning of Section 1297 of the U.S.
Internal Revenue Code of 1986, as amended.


 


(jj)           OFAC. Neither the Company nor any Subsidiary nor, to the Company’s Knowledge,
any director, officer, agent, employee, Affiliate or Person acting on behalf of
the Company or any Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the
Company will not knowingly directly or indirectly use the proceeds of the sale
of the Shares, or lend, contribute or otherwise make available such proceeds to
any Subsidiary, joint venture partner or other Person or entity, towards any
sales or operations in Cuba, Iran, Syria, Sudan, Myanmar or any other country
sanctioned by OFAC or for the purpose of financing the activities of any Person
currently subject to any U.S. sanctions administered by OFAC.


 


(kk)         Money
Laundering Laws. To the Company’s Knowledge, the operations of each of the
Company and any Subsidiary are and have been conducted at all times in
compliance with the money laundering statutes of applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any applicable governmental
agency (collectively, the “Money Laundering Laws”) and to the Company’s
Knowledge, no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company and/or any
Subsidiary with respect to the Money Laundering Laws is pending or threatened.


 


(ll)           FDA.
To the Company’s Knowledge, there is no pending, completed or threatened,
action (including any lawsuit, arbitration, or legal or administrative or
regulatory proceeding, charge, complaint, or investigation) against the Company
or any of its Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from the U.S.
Food and Drug Administration (“FDA”)
or any other governmental entity, which (i) contests the premarket clearance,
licensure, registration, or approval of, the uses of, the distribution of, the
manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any product subject to the jurisdiction of the FDA under the
Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder
that is manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the


 


17

















 


Company or any of its Subsidiaries (each such product,
a “Pharmaceutical Product”), (ii)
imposes a clinical hold on any clinical investigation by the Company or any of
its Subsidiaries, (iii) enjoins production at any facility of the Company or
any of its Subsidiaries, (iv) enters or proposes to enter into a consent decree
of permanent injunction with the Company or any of its Subsidiaries, or (v)
otherwise alleges any violation of any laws, rules or regulations by the
Company or any of its Subsidiaries, and which, either individually or in the
aggregate, would have a Material Adverse Effect.  The Company has not been
informed in writing by the FDA that the FDA will prohibit the marketing, sale,
license or use in the United States of any product proposed to be developed,
produced or marketed by the Company.


 


(mm)       No Additional Agreements. The Company does not have any agreement or
understanding with any Purchaser with respect to the transactions contemplated
by the Transaction Documents other than as specified in the Transaction
Documents.


 


3.2           Representations
and Warranties of the Purchasers. Each Purchaser hereby, for
itself and for no other Purchaser, represents and warrants as of the date
hereof and as of the Closing Date to the Company as follows:


 


(a)           Organization;
Authority. Such Purchaser is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization with
the requisite corporate or partnership power and authority to enter into and to
consummate the transactions contemplated by the applicable Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution, delivery and performance by such Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or, if such Purchaser is not a corporation, such partnership, limited
liability company or other applicable like action, on the part of such
Purchaser. Each of this Agreement and the Registration Rights Agreement has
been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application.


 


(b)           No
Conflicts. The execution, delivery and performance by such Purchaser of
this Agreement and the Registration Rights Agreement and the consummation by
such Purchaser of the transactions contemplated hereby and thereby will not (i)
result in a violation of the organizational documents of such Purchaser, (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Purchaser is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment  or decree (including federal and state
securities laws) applicable to such Purchaser, except in the case of clauses
(ii) and (iii) above, for such conflicts, defaults, rights or violations which
would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of such Purchaser to perform its
obligations hereunder.


 


(c)           Investment Intent. Such Purchaser understands that the Shares
are “restricted securities” and have not been registered under the Securities
Act or any applicable state securities law and is acquiring the Shares as
principal for its own account and not with a view to, or for distributing or
reselling such Shares or any part thereof in violation of the Securities Act or
any applicable state securities laws, provided,
however, that by making the representations herein, such Purchaser
does not agree to hold any of the Shares for any minimum period of time and
reserves the right, subject to the provisions of this Agreement and the
Registration Rights Agreement, at all times to sell or otherwise dispose of all
or any part of such Shares pursuant to an effective registration statement
under the Securities Act or under an exemption from


 


18

















 


such registration and in
compliance with applicable federal and state securities laws. Such Purchaser is
acquiring the Shares hereunder in the ordinary course of its business. Such
Purchaser does not presently have any agreement, plan or understanding,
directly or indirectly, with any Person to distribute or effect any
distribution of any of the Shares (or any securities which are derivatives
thereof) to or through any person or entity; such Purchaser is not a registered
broker-dealer under Section 15 of the Exchange Act or an entity engaged in a
business that would require it to be so registered as a broker-dealer.


 


(d)           Purchaser Status. At the time such Purchaser was offered the
Shares, it was, and at the date hereof it is, an “accredited investor” as
defined in Rule 501(a) under the Securities Act.


 


(e)           General Solicitation. Such Purchaser is not purchasing the Shares
as a result of any advertisement, article, notice or other communication
regarding the Shares published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general advertisement.


 


(f)            Experience of Such Purchaser. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares, and has so evaluated the
merits and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Shares and, at the present time, is able
to afford a complete loss of such investment.


 


(g)           Access to Information. Such Purchaser acknowledges that it has had
the opportunity to review the Disclosure Materials and has been afforded (i)
the opportunity to ask such questions as it has deemed necessary of, and to
receive answers from, representatives of the Company concerning the terms and
conditions of the offering of the Shares and the merits and risks of investing
in the Shares; (ii) access to information about the Company and the
Subsidiaries and their respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment decision
with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of such Purchaser or its
representatives or counsel shall modify, amend or affect such Purchaser’s right
to rely on the truth, accuracy and completeness of the Disclosure Materials and
the Company’s representations and warranties contained in the Transaction
Documents. Such Purchaser has sought such accounting, legal and tax advice as
it has considered necessary to make an informed decision with respect to its
acquisition of the Shares.


 


(h)           Certain Trading Activities. Other than with respect to the transactions
contemplated herein, since the time that such Purchaser was first contacted by
the Company, the Placement Agent or any other Person regarding the transactions
contemplated hereby, neither the Purchaser nor any Affiliate of such Purchaser
which (x) had knowledge of the transactions contemplated hereby, (y) has or
shares discretion relating to such Purchaser’s investments or trading or
information concerning such Purchaser’s investments, including in respect of
the Shares, and (z) is subject to such Purchaser’s review or input concerning
such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has directly or
indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with such Purchaser or Trading Affiliate, effected or agreed to
effect any purchases or sales of the securities of the Company (including,
without limitation, any Short Sales involving the Company’s securities). Notwithstanding
the foregoing, in the case of a Purchaser and/or Trading Affiliate that is,
individually or collectively, a multi-managed investment bank or vehicle
whereby separate portfolio managers manage separate portions of such Purchaser’s
or Trading Affiliate’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio managers managing
other portions of such Purchaser’s or Trading Affiliate’s assets, the
representation set forth above shall apply only with respect to the portion of
assets managed by the portfolio


 


19

















 


manager that have knowledge about the financing
transaction contemplated by this Agreement. Other than to other Persons party
to this Agreement, such Purchaser has maintained the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction). Notwithstanding the foregoing, except
as provided in Section 4.12, no Purchaser makes any representation, warranty or
covenant hereby that it will not engage in Short Sales in the securities of the
Company after the time that the Registration Statement becomes effective.


 


(i)            Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company or any Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Purchaser.


 


(j)            Independent Investment Decision. Such Purchaser has independently evaluated
the merits of its decision to purchase Shares pursuant to the Transaction
Documents, and such Purchaser confirms that it has not relied on the advice of
any other Purchaser’s business and/or legal counsel in making such decision. Such
Purchaser understands that nothing in this Agreement or any other materials
presented by or on behalf of the Company to the Purchaser in connection with
the purchase of the Shares constitutes legal, tax or investment advice. Such
Purchaser has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of the Shares. Such Purchaser understands that the Placement Agent has
acted solely as the agent of the Company in this placement of the Shares and
such Purchaser has not relied on the business or legal advice of the Placement
Agent or any of its agents, counsel or Affiliates in making its investment
decision hereunder, and confirms that none of such Persons has made any
representations or warranties to such Purchaser in connection with the
transactions contemplated by the Transaction Documents.


 


(k)           Reliance on Exemptions. Such Purchaser understands that the Shares
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws
and that the Company is relying in part upon the truth and accuracy of, and such
Purchaser’s compliance with, the representations, warranties, agreements,
acknowledgements and understandings of such Purchaser set forth herein in order
to determine the availability of such exemptions and the eligibility of such
Purchaser to acquire the Shares.


 


(l)            No Governmental Review. Such Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Shares or the
fairness or suitability of the investment in the Shares nor have such
authorities passed upon or endorsed the merits of the offering of the Shares.


 


(m)          Regulation M. Such Purchaser is aware that the
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of Common Stock and other activities with respect to the Common Stock by
the Purchasers.


 


(n)           Beneficial Ownership. The purchase by such Purchaser of
the Shares issuable to it at the Closing will not result in such Purchaser
(individually or together with any other Person with whom such Purchaser has
identified, or will have identified, itself as part of a “group” in a public
filing made with the Commission involving the Company’s securities) acquiring,
or obtaining the right to acquire, in excess of 19.999% of the outstanding
shares of Common Stock or the voting power of the Company on a post transaction
basis that assumes that such Closing shall have occurred. Such Purchaser does
not presently intend to, alone or together with others, make a public filing
with the Commission to disclose that it has (or that it together with such
other Persons have) acquired, or obtained the right to acquire, as a result of
such Closing (when added to any other securities of the Company that it or they
then own or have the right to


 


20

















 


acquire), in excess of 19.999% of the outstanding
shares of Common Stock or the voting power of the Company on a post transaction
basis that assumes that each Closing shall have occurred.


 


(o)           Residency.
Such Purchaser’s residence (if an individual) or office in which its investment
decision with respect to the Shares was made (if an entity) are located at the
address immediately below such Purchaser’s name on its signature page hereto.


 


(p)           [PRC Matters. Such Purchaser acknowledges that the offer
of the Shares has not been and will not be registered with the Financial
Supervisory Commission of Taiwan, the Republic of China, pursuant to relevant
securities laws and regulations and may not be offered or sold within Taiwan,
the Republic of China, through a public offering or in a circumstance which
constitutes an offer within the meaning of the Securities and Exchange Law of
Taiwan, the Republic of China, that requires a registration or approval of the
Financial Supervisory Commission of Taiwan, the Republic of China.](1)


 


(q)           Foreign Currency. Such Purchaser acknowledges that it has
obtained any foreign currency exchange approvals necessary for such Purchaser
to make an investment in the Shares.


 


The Company and each of the
Purchasers acknowledge and agree that no party to this Agreement has made or
makes any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Article III
and the Transaction Documents.


 


ARTICLE
IV.

OTHER AGREEMENTS OF THE PARTIES


 


4.1           Transfer
Restrictions.


 


(a)           Compliance
with Laws. Notwithstanding any other provision of this Article IV, each
Purchaser covenants that the Shares may be disposed of only pursuant to an
effective registration statement under, and in compliance with the requirements
of, 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 any applicable state and federal securities laws. In
connection with any transfer of the Shares other than (i) pursuant to an
effective registration statement, (ii) to the Company, (iii) pursuant to Rule
144 (provided that the Purchaser
provides the Company with reasonable assurances (in the form of seller and
broker representation letters) that the securities may be sold pursuant to such
rule) or Rule 144A, (iv) pursuant to Rule 144(k) following the applicable
holding period or (v) in connection with a bona fide pledge, the Company may
require the transferor thereof to provide to the Company and the Transfer Agent
an opinion of counsel selected by the transferor and reasonably acceptable to
the Company and the Transfer Agent, the form and substance of which opinion
shall be reasonably satisfactory to the Company and the Transfer Agent, to the
effect that such transfer does not require registration of such transferred
Shares under the Securities Act. As a condition of transfer, any such transferee
shall agree in writing to be bound by the terms of this Agreement and shall
have the rights of a Purchaser under this Agreement and the Registration Rights
Agreement.


 


(b)           Legends. Certificates evidencing the Shares shall bear any legend as required by
the “blue sky” laws of any state and a restrictive legend in substantially the
following form, until such time as they are not required under Section 4.1(c):


 


THESE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR


 






(1)  This
provision was not included in the version of the agreement signed by some
investors


 


21

















 


APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER
AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.


 


The Company acknowledges and
agrees that a Purchaser may from time to time pledge, and/or grant a security
interest in, some or all of the legended Shares in connection with applicable
securities laws, pursuant to a bona fide margin agreement in compliance with a
bona fide margin loan. Such a pledge would not be subject to approval or
consent of the Company and no legal opinion of legal counsel to the pledgee,
secured party or pledgor shall be required in connection with the pledge, but
such legal opinion shall be required in connection with a subsequent transfer
or foreclosure following default by the Purchaser transferee of the pledge. No
notice shall be required of such pledge, but Purchaser’s transferee shall
promptly notify the Company of any such subsequent transfer or foreclosure. Each
Purchaser acknowledges that the Company shall not be responsible for any
pledges relating to, or the grant of any security interest in, any of the
Shares or for any agreement, understanding or arrangement between any Purchaser
and its pledgee or secured party. Each Purchaser acknowledges and agrees that,
except as otherwise provided in Section 4.1(c), any Shares subject to a pledge
or security interest as contemplated by this Section 4.1(b) shall continue to
bear the legend set forth in this Section 4.1(b) and be subject to the
restrictions on transfer set forth in Section 4.1(a).


 


(c)           Removal of Legends. The legend set forth in Section 4.1(b)
above shall be removed and the Company shall issue a certificate without such
legend or any other legend to the holder of the applicable Shares upon which it
is stamped or issue to such holder by electronic delivery at the applicable
balance account at the Depository Trust Company (“DTC”), if (i) such Shares are registered for resale under
the Securities Act (provided that the Purchaser agrees to only sell such Shares
when, and as permitted, by the effective registration statement permitting such
resale), (ii) such Shares are sold or transferred pursuant to Rule 144 (if the
transferor is not an Affiliate of the Company), or (iii) such Shares are
eligible for sale under Rule 144(k). Any fees (with respect to the Transfer
Agent, Company Counsel or otherwise) associated with the removal of such legend
shall be borne by the Company. Following the Effective Date, or at such earlier
time as a legend is no longer required for certain Shares, the Company will no
later than three (3) Trading Days following the delivery by a Purchaser to the
Company or the Transfer Agent (with notice to the Company) of a legended
certificate representing such Shares (endorsed or with stock powers attached,
signatures guaranteed, and otherwise in form necessary to affect the reissuance
and/or transfer) and an opinion of counsel to the extent required by Section
4.1(a) (such third Trading Day, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a
certificate representing such Shares that is free from all restrictive and
other legends. The Company may not make any notation on its records or give
instructions to the Transfer Agent that enlarge the restrictions on transfer
set forth in this Section. Certificates for Shares subject to legend removal
hereunder may be transmitted by the Transfer Agent to the Purchasers by
crediting the account of the Purchaser’s prime broker with DTC.


 


22

















 


(d)           Irrevocable Transfer Agent Instructions.        The Company shall issue irrevocable instructions to its Transfer Agent,
and any subsequent transfer agent in the form of Exhibit D attached
hereto (the “Irrevocable Transfer Agent
Instructions”). The Company represents and warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 4.1(d) or instructions that are not contradictory
therewith will be given by the Company
to its transfer agent in connection with this Agreement, and that the Shares
shall otherwise be freely transferable on the books and records of the Company
as and to the extent provided in this Agreement and the other Transaction
Documents and applicable law. The Company acknowledges that a breach by
it of its obligations under this Section 4.1(d)
will cause irreparable harm to a Purchaser. Accordingly, the Company
acknowledges that the remedy at law for a breach of its obligations under this
Section 4.1(d) will be inadequate
and agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Section 4.1(d),
that a Purchaser shall be entitled, in addition to all other available
remedies, to an order and/or injunction restraining any breach and requiring
immediate issuance and transfer, without the necessity of showing economic loss
and without any bond or other security being required.


 


(e)           Acknowledgement. Each Purchaser hereunder acknowledges its
primary responsibilities under the Securities Act and accordingly will not sell
or otherwise transfer the Shares or any interest therein without complying with
the requirements of the Securities Act. Except as otherwise provided below,
while the above-referenced registration statement remains effective, each
Purchaser hereunder may sell the Shares in accordance with the plan of
distribution contained in the registration statement and if it does so it will
comply therewith and with the related prospectus delivery requirements unless
an exemption therefrom is available. Each Purchaser, severally and not
jointly with the other Purchasers, agrees that if it is notified by the Company
in writing at any time that the registration statement registering the resale
of the Shares is not effective or that the prospectus included in such
registration statement no longer complies with the requirements of Section 10
of the Securities Act, the Purchaser will refrain from selling such Shares
until such time as the Purchaser is notified by the Company that such
registration statement is effective or such prospectus is compliant with
Section 10 of the Exchange Act, unless such Purchaser is able to, and does,
sell such Shares pursuant to an available exemption from the registration
requirements of Section 5 of the Securities Act. Both the Company and its Transfer Agent, and their respective directors,
officers, employees and agents, may rely on this subsection (e) and each
Purchaser hereunder will indemnify and hold harmless each of such persons from
any breaches or violations of this paragraph.


 


(f)            Buy-In. If the Company shall fail for any reason or for no reason to issue to a
Purchaser unlegended certificates within three (3) Business Days of receipt of
all documents necessary for the removal of the legend set forth above (the “Deadline Date”), then, in addition to all
other remedies available to such Purchaser, if on or after the Business Day
immediately following such three (3) Business Day period, such Purchaser
purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the holder of shares of Common Stock
that such Purchaser anticipated receiving from the Company without any
restrictive legend (a “Buy-In”),
then the Company shall, within three (3) Business Days after such Purchaser’s
request and in such Purchaser’s sole discretion, either (i) pay cash to the
Purchaser in an amount equal to such Purchaser’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so
purchased (the “Buy-In Price”),
at which point the Company’s obligation to deliver such certificate (and to
issue such shares of Common Stock) shall terminate, or (ii) promptly honor its
obligation to deliver to such Purchaser a certificate or certificates
representing such shares of Common Stock and pay cash to the Purchaser in an
amount equal to the excess (if any) of the Buy-In Price over the product of (a)
such number of shares of Common Stock, times (b) the Closing Bid Price on the
Deadline Date.


 


4.2           Acknowledgment of Dilution.  The Company acknowledges
that the issuance of the Shares may result in dilution of the outstanding
shares of Common Stock.  The Company further acknowledges that its
obligations under the Transaction Documents, including without limitation its
obligation to issue the


 


23

















 


Shares
pursuant to the Transaction Documents, are unconditional and absolute and not
subject to any right of set off, counterclaim, delay or reduction, regardless
of the effect of any such dilution or any claim the Company may have against
any Purchaser and regardless of the dilutive effect that such issuance may have
on the ownership of the other stockholders of the Company.


 


4.3           Furnishing of Information. In order
to enable the Purchasers to sell the Shares under Rule 144 of the Securities
Act, for a period of two years from the Closing, the Company shall use its
commercially reasonable efforts to timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be
filed by the Company after the date hereof pursuant to the Exchange Act. During
such two year period, if the Company is not required to file reports pursuant
to such laws, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for
the Purchasers to sell the Shares under Rule 144.


 


4.4           [Reserved.]


 


4.5           Form D and
Blue Sky. The Company agrees to timely file a Form D with
respect to the Shares as required under Regulation D. The Company, on or before
the Closing Date, shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for or to qualify the
Shares for sale to the Purchasers at the Closing pursuant to this Agreement under
applicable securities or “Blue Sky” laws of the states of the United States (or
to obtain an exemption from such qualification). The Company shall make all
filings and reports relating to the offer and sale of the Shares required under
applicable securities or “Blue Sky” laws of the states of the United States
following the Closing Date.


 


4.6           No
Integration. The Company shall not, and shall use its
commercially reasonable efforts to ensure that no Affiliate of the Company
shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in Section 2 of the Securities Act) that
will be integrated with the offer or sale of the Shares in a manner that would require the
registration under the Securities Act of the sale of the Shares to the Purchasers, or that will be
integrated with the offer or sale of the Shares for purposes of the rules and regulations of
any Trading Market such that it would require stockholder approval prior to the
closing of such other transaction unless stockholder approval is obtained
before the closing of such subsequent transaction.


 


4.7           Securities
Laws Disclosure; Publicity. By 9:00 a.m., New York
City time, on the Trading Day immediately following the execution of this
Agreement, the Company shall issue a press release (the “Press Release”) reasonably acceptable to
the Placement Agent disclosing all material terms of the transactions
contemplated hereby. On or before 9:00 a.m., New York City time, on the second
Trading Day immediately following the execution of this Agreement, the Company
will file a Current Report on Form 8-K with the Commission describing the terms
of the Transaction Documents (and including as exhibits to such Current Report
on Form 8-K the material Transaction Documents (including, without limitation,
this Agreement and the Registration Rights Agreement)). Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser or
an Affiliate of any Purchaser, or include the name of any Purchaser or an
Affiliate of any Purchaser in any press release or filing with the Commission
(other than the Registration Statement) or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with (A) any registration
statement contemplated by the Registration Rights Agreement and (B) the filing
of final Transaction Documents (including signature pages thereto) with the
Commission and (ii) to the extent such disclosure is required by law, request
of the Staff of the Commission or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior written notice of such
disclosure permitted under this subclause (ii). From and after the issuance of
the Press Release, no Purchaser shall be in possession of any material,
non-public information received from the Company, any Subsidiary or any of
their respective officers, directors, employees or agents, that is not
disclosed in the Press Release unless a Purchaser shall


 


24

















 


have executed a written agreement regarding
the confidentiality and use of such information. Each Purchaser, severally and
not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the
Company as described in this Section 4.7, such Purchaser will maintain the
confidentiality of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).


 


4.8           Non-Public
Information. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, and
except with the express written consent of such Purchaser and unless prior
thereto such Purchaser shall have executed a written agreement regarding the
confidentiality and use of such information the Company shall not, and shall
cause each Subsidiary and each of their respective officers, directors,
employees and agents, not to, and each Purchaser shall not directly solicit the
Company, any of its Subsidiaries or any of their respective officers,
directors, employees or agents to provide any Purchaser with any material,
non-public information regarding the Company or any of its Subsidiaries from
and after the filing of the Press Release.


 


4.9           Indemnification.


 


(a)           Indemnification of Purchasers. In addition to the indemnity provided in
the Registration Rights Agreement, the Company will indemnify and hold
each Purchaser and its directors, officers, stockholders, members, partners,
employees and agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such title or any
other title), each Person who controls such Purchaser (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, stockholders, agents, members, partners or employees (and
any other Persons with a functionally equivalent role of a Person holding such
titles notwithstanding a lack of such title or any other title) of such
controlling person (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result of
any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction Documents;
provided that such a claim for indemnification relating to any breach of any of
the representations or warranties made by the Company in this Agreement is made
within one year from Closing.  The Company will not be liable to any
Purchaser Party under this Agreement to the extent, but only to the extent that
a loss, claim, damage or liability is attributable to any Purchaser Party’s
breach of any of the representations, warranties, covenants or agreements made
by such Purchaser Party in this Agreement or in the other Transaction
Documents.


 


(b)           Conduct of Indemnification Proceedings. Promptly after receipt by any Person (the “Indemnified Person”) of notice of any
demand, claim or circumstances which would or might give rise to a claim or the
commencement of any action, proceeding or investigation in respect of which
indemnity may be sought pursuant to Section 4.9(a), such Indemnified Person
shall promptly notify the Company in writing and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Indemnified Person, and shall assume the payment of all fees and expenses;
provided, however,  that the failure of any Indemnified Person so to notify the
Company shall not relieve the Company of its obligations hereunder except to
the extent that the Company is actually and materially prejudiced by such
failure to notify. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless: (i) the Company and
the Indemnified Person shall have mutually agreed to the retention of such
counsel; (ii) the Company shall have failed promptly to assume the defense of
such proceeding and to employ counsel reasonably satisfactory to such
Indemnified Person in such proceeding; or (iii) 
in the reasonable judgment of counsel to such Indemnified Person, representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not be liable


 


25

















 


for any settlement of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. Without the prior written
consent of the Indemnified Person, which consent shall not be unreasonably
withheld, delayed or conditioned, the Company shall not effect any settlement
of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Person from all liability arising out of such
proceeding.


 


4.10         Listing of
Shares. Prior to the execution of this Agreement or
promptly following the date hereof, the Company shall have taken or shall take
all necessary action to cause the Shares to be listed upon the Principal
Trading Market, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance) and shall maintain, so long as any
other shares of Common Stock shall be so listed, such listing.


 


4.11         Use of Proceeds. The Company intends to use the net proceeds from the
sale of the Shares hereunder for working capital and general corporate
purposes.


 


4.12         Dispositions After The Date Hereof. Each Purchaser shall not, and
shall cause its Trading Affiliates not to, prior to the effectiveness of the
Registration Statement: (a) sell, offer to sell, solicit offers to buy,
dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”) the Shares unless pursuant
to an exemption from the registration requirements under the Securities Act; or
(b) engage in any hedging or other transaction which is designed or could
reasonably be expected to lead to or result in a Disposition of the Shares by
such Purchaser or an Affiliate. In addition, Purchaser agrees that for so long
as it owns any Common Stock, it will not enter into any short sale of Shares
executed at a time when the Purchaser has no equivalent offsetting long
position in the Common Stock. For purposes of determining whether the Purchaser
has an equivalent offsetting long position in the Common Stock, shares that the
Purchaser is entitled to receive within sixty (60) days (whether pursuant
to contract or upon conversion or exercise of convertible securities) will be
included as if held long by the Purchaser. Such Purchaser covenants that
neither it nor any Person acting on its behalf or pursuant to any understanding
with it will engage in any transactions in the Company’s securities (including,
without limitation, any Short Sales involving the Company’s securities) during
the period from the date hereof until the earlier of such time as (i) the
transactions contemplated by this Agreement are first publicly announced as
described in Section 4.7 or (ii) this Agreement is terminated in full pursuant
to Section 6.17. Notwithstanding the foregoing, in the case of a Purchaser that
is a multi-managed investment vehicle whereby separate portfolio managers
manage separate portions of such Purchaser’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets, the representation
set forth above shall apply only with respect to the portion of assets managed
by the portfolio manager that have knowledge about the financing transaction
contemplated by this Agreement. Each Purchaser understands and acknowledges,
severally and not jointly with any other Purchaser, that the Commission
currently takes the position that covering a short position established prior
to effectiveness of a resale registration statement with shares included in
such registration statement would be a violation of Section 5 of the Securities
Act, as set forth in Item 65, Section 5 under Section A, of the Manual of
Publicly Available Telephone Interpretations, dated July 1997, compiled by the
Office of Chief Counsel, Division of Corporation Finance.


 


26
















 


ARTICLE
V.


CONDITIONS PRECEDENT TO CLOSING


 


5.1           Conditions Precedent to the
Obligations of the Purchasers to Purchase Shares. The obligation of each
Purchaser to acquire Shares at the Closing is subject to the fulfillment to
such Purchaser’s satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived by such Purchaser (as to
itself only):


 


(a)           Representations and Warranties. The representations
and warranties of the Company contained herein shall be true and correct in all
material respects  (except for those
representations and warranties which are qualified as to materiality, in which
case such representations and warranties shall be true and correct in all
respects) as of the date when made and as of the Closing Date, as though made
on and as of such date, except for such representations and warranties that
speak as of a specific date.


 


(b)           Performance. The Company shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied
or complied with by it at or prior to the Closing.


 


(c)           No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.


 


(d)           Consents. The Company shall have obtained in a
timely fashion any and all consents, permits, approvals, registrations and
waivers necessary for consummation of the purchase and sale of the Shares at
the Closing (including all Required Approvals), all of which shall be and
remain so long as necessary in full force and effect.


 


(e)           No
Suspensions of Trading in Common Stock; Listing. The Common Stock (i) shall be designated
for quotation or listed on the Principal Trading Market and (ii) shall not have
been suspended, as of the Closing Date, by the Commission or the Principal
Trading Market from trading on the Principal Trading Market nor shall
suspension by the Commission or the Principal Trading Market have been
threatened, as of the Closing Date, either (A) in writing by the Commission or
the Principal Trading Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Trading Market.


 


(f)            Company Deliverables. The Company shall have
delivered the Company Deliverables in 
accordance with Section 2.2(a).


 


(g)           Compliance Certificate. The Company shall have
delivered to each Purchaser a certificate, dated as of the Closing Date and
signed by its Chief Executive Officer or its Chief Financial Officer, dated as
of the Closing Date, certifying to the fulfillment of the conditions specified
in Sections 5.1(a) and (b) in the form attached hereto as Exhibit F.


 


(h)           Termination.          This
Agreement shall not have been terminated as to such Purchaser in accordance
with Section 6.17 herein.


 


5.2           Conditions Precedent to the
Obligations of the Company to sell Shares. The Company’s obligation to sell
and issue the Shares at the Closing is subject to the fulfillment to the
satisfaction of the Company on or prior to the Closing Date of the following
conditions, any of which may be waived by the Company:


 


27

















 


(a)           Representations and Warranties. The representations
and warranties made by the Purchaser in Section 3.2 hereof shall be true and
correct in all material respects as of the date when made, and as of the
Closing Date as though made on and as of such date, except for representations
and warranties that speak as of a specific date.


 


(b)           Performance. Such Purchaser shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied
or complied with by such Purchaser at or prior to the Closing Date.


 


(c)           No Injunction. No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.


 


(d)           Consents. The Company shall have obtained in a
timely fashion any and all consents, permits, approvals, registrations and
waivers necessary for consummation of the purchase and sale of the Shares, all
of which shall be and remain so long as necessary in full force and effect.


 


(e)           Purchasers Deliverables. Such Purchaser shall have
delivered its Purchaser Deliverables in accordance with Section 2.2(b).


 


(f)            Termination. This Agreement shall not have been
terminated as to such Purchaser in accordance with Section 6.17 herein.


 


ARTICLE
VI.

MISCELLANEOUS


 


6.1           Fees and Expenses. Except as
otherwise expressly set forth in the Company’s engagement letter with the
Placement Agent, the Company and the Purchasers shall each pay the fees and
expenses of their respective advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party in connection with the
negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other
taxes and duties levied in connection with the sale and issuance of the Shares
to the Purchasers. Each party acknowledges that Lowenstein Sandler PC has
rendered legal advice to the Placement Agent and not to such party in
connection with the transactions contemplated hereby, and that such party has
relied for such matters on the advice of its own respective counsel.


 


6.2           Entire Agreement. The
Transaction Documents, together with the Exhibits and Schedules thereto,
contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements, understandings, discussions
and representations, oral or written, with respect to such matters, which the
parties acknowledge have been merged into such documents, exhibits and
schedules. At or after the Closing, and without further consideration, the
Company and the Purchasers will execute and deliver to the other such further
documents as may be reasonably requested in order to give practical effect to
the intention of the parties under the Transaction Documents.


 


6.3           Notices. Any and all notices
or other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number specified in
this Section prior to 5:00 p.m., New York City time, on a Trading Day, (b) the
next Trading Day after the date of


 


28

















 


transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section on
a day that is not a Trading Day or later than 5:00 p.m., New York City time, on
any Trading Day, (c) the Trading Day following the date of mailing, if sent by
U.S. nationally recognized overnight courier service with next day delivery
specified, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:


 


	
  If to the Company:

  	
   

  	
  Optimer Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  10110 Sorrento Valley Road

  
	
   

  	
   

  	
  Suite C

  
	
   

  	
   

  	
  San Diego, CA 92121

  
	
   

  	
   

  	
  Telephone No.: (858) 909-0736

  
	
   

  	
   

  	
  Facsimile No.: (858) 909-0737

  
	
   

  	
   

  	
  Attention: John D. Prunty

  
	
   

  	
   

  	
  E-mail: jprunty@optimerpharma.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Cooley Godward Kronish LLP

  
	
   

  	
   

  	
  4401 Eastgate Mall

  
	
   

  	
   

  	
  San Diego, CA 92121-1909

  
	
   

  	
   

  	
  Telephone No.: (858) 550-6013

  
	
   

  	
   

  	
  Facsimile No.: (858) 550-6420

  
	
   

  	
   

  	
  Attention: Thomas Coll

  
	
   

  	
   

  	
  E-mail: collta@cooley.com

  



 


If to a
Purchaser:  To the address set forth under
such Purchaser’s name on the signature page        hereof;


 


or such other address as may be designated in
writing hereafter, in the same manner, by such Person.


 


6.4           Amendments; Waivers; No Additional
Consideration. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the
Company and each of the Purchasers holding or having the right to acquire a
majority of the Shares on a fully-diluted basis at the time of such amendment
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or omission
of either party to exercise any right hereunder in any manner impair the
exercise of any such right. No consideration shall be offered or paid to any
Purchaser to amend or consent to a waiver or modification of any provision of
any Transaction Document unless the same consideration is also offered to all
Purchasers who then hold Shares.


 


6.5           Construction. The headings
herein are for convenience only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction
will be applied against any party. This Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement or any of the Transaction Documents.


 


6.6           Successors and Assigns. The
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties and their successors and permitted assigns. This Agreement, or any
rights or obligations hereunder, may not be assigned by the Company without the
prior written consent of the Purchasers. Any Purchaser may assign its rights
hereunder in whole or in part to any Person to whom such


 


29

















 


Purchaser assigns or transfers any Shares in
compliance with the Transaction Documents and applicable law, provided such
transferee shall agree in writing to be bound, with respect to the transferred
Shares, by the terms and conditions of this Agreement that apply to the “Purchasers”.


 


6.7           No Third-Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto and their
respective successors and permitted assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person, except (i) the
Placement Agent is an intended third party beneficiary of Article III hereof
and (ii) the Escrow Agent is an intended third party beneficiary of Section
2.1(d), and the Placement Agent or the Escrow Agent, as the case may be, may
enforce the provisions of such Section directly against the parties with
obligations thereunder.


 


6.8           Governing Law. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in accordance with
the internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective Affiliates, employees or agents) shall be
commenced exclusively in the New York Courts. Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any such New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to process
being served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


6.9           Survival. Subject to
applicable statute of limitations, the representations, warranties, agreements
and covenants contained herein shall survive the Closing and the delivery of
the Shares, except that the representations and warranties contained herein
shall terminate upon the one year anniversary of the Closing Date.


 


6.10         Execution. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission, or by
e-mail delivery of a “.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.


 


6.11         Severability. If any provision
of this Agreement is held to be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this
Agreement shall not in any way be affected or impaired thereby and the parties
will attempt to agree upon a valid and enforceable provision that is a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.


 


30

















 


6.12         Replacement of Shares. If any
certificate or instrument evidencing any Shares is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company and the Transfer Agent of such loss, theft or
destruction and the execution by the holder thereof of a customary lost
certificate affidavit of that fact and an agreement to indemnify and hold
harmless the Company and the Transfer Agent for any losses in connection
therewith or, if required by the Transfer Agent, a bond in such form and amount
as is required by the Transfer Agent. The applicants for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs associated with the issuance of such replacement Shares. If a replacement
certificate or instrument evidencing any Shares is requested due to a
mutilation thereof, the Company may require delivery of such mutilated certificate
or instrument as a condition precedent to any issuance of a replacement.


 


6.13         Remedies. In addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of damages, each of the Purchasers and the Company will be entitled to
specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agree to waive in any action for specific performance of any such
obligation (other than in connection with any action for a temporary
restraining order) the defense that a remedy at law would be adequate.


 


6.14         Payment Set Aside. To the extent
that the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a
trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.


 


6.15         Adjustments in Share Numbers and
Prices. In the event of any stock split, subdivision, dividend or
distribution payable in shares of Common Stock (or other securities or rights
convertible into, or entitling the holder thereof to receive directly or
indirectly shares of Common Stock), combination or other similar
recapitalization or event occurring after the date hereof and prior to the
Closing, each reference in any Transaction Document to a number of shares or a
price per share shall be deemed to be amended to appropriately account for such
event.


 


6.16         Independent Nature of Purchasers’
Obligations and Rights. The obligations of each Purchaser under any
Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under any Transaction
Document. The decision of each Purchaser to purchase Shares pursuant to the
Transaction Documents has been made by such Purchaser independently of any
other Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities,
results of operations, condition (financial or otherwise) or prospects of the
Company or any Subsidiary which may have been made or given by any other
Purchaser or by any agent or employee of any other Purchaser, and no Purchaser
and any of its agents or employees shall have any liability to any other
Purchaser (or any other Person) relating to or arising from any such
information, materials, statement or opinions. Nothing contained herein or in
any Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any


 


31

















 


way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser acknowledges that no other Purchaser has acted as
agent for such Purchaser in connection with making its investment hereunder and
that no Purchaser will be acting as agent of such Purchaser in connection with
monitoring its investment in the Shares or enforcing its rights under the
Transaction Documents. Each Purchaser shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. The Company acknowledges that each of the
Purchasers has been provided with the same Transaction Documents for the
purpose of closing a transaction with multiple Purchasers and not because it
was required or requested to do so by any Purchaser. The Company’s obligations
to each Purchaser under this Agreement are identical to its obligations to each
other Purchaser other than such differences resulting solely from the number of
Shares purchased by such Purchaser, but regardless of whether such obligations
are memorialized herein or in another agreement between the Company and a
Purchaser.


 


6.17         Termination. This Agreement may be terminated and the
sale and purchase of the Shares abandoned at any time prior to the Closing by
either the Company or any Purchaser (with respect to itself only) upon written
notice to the other, if the Closing has not been consummated on or prior to
5:00 p.m., New York City time, on the Outside Date; provided, however, that the right to terminate this
Agreement under this Section 6.17 shall not be available to any Person whose
failure to comply with its obligations under this Agreement has been the cause
of or resulted in the failure of the Closing to occur on or before such time.
Nothing in this Section 6.17 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this
Agreement or the other Transaction Documents or to impair the right of any
party to compel specific performance by any other party of its obligations under
this Agreement or the other Transaction Documents. In the event of a
termination pursuant to this Section, the Company shall promptly notify all
non-terminating Purchasers and the Escrow Agent. Upon a termination in
accordance with this Section, the Company and the terminating Purchaser(s)
shall not have any further obligation or liability (including arising from such
termination) to the other, and no Purchaser will have any liability to any
other Purchaser under the Transaction Documents as a result therefrom.


 


32

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Securities Purchase Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.


 


	
   

  	
  OPTIMER PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Michael N. Chang, Ph.D.

  	
   

  
	
   

  	
   

  	
  Name: Michael N. Chang,
  Ph.D.

  
	
   

  	
   

  	
  Title: President and Chief
  Executive Officer

  



 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

[SIGNATURE PAGES FOR PURCHASERS FOLLOW]


 
















 


	
   

  	
  NAME OF PURCHASER: Chung
  Chia Company Limited

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Hsu Tsui-Hua

  	
   

  
	
   

  	
  Name:

  	
  Hsu Tsui-Hua

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price (Subscription Amount):
  $6,037,200.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares to be Acquired: 774,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  T/F, 308 Bade Road, Section 2

  
	
   

  	
  Taipei, Taiwan

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  886 2 8161 9908

  
	
   

  	
  Facsimile No.:

  	
  886 2 8161 7969

  
	
   

  	
   

  
	
   

  	
  Email: frankchen@mail.ruentex.com.tw

  
	
   

  	
   

  
	
   

  	
  Attention: Frank Chen

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Hanton
  Consultants, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Lang Chou

  	
   

  
	
   

  	
  Name:

  	
  Lang Chou

  
	
   

  	
  Title:

  	
  U.S. Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price (Subscription Amount):
  $1,999,998.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares to be Acquired: 256,410

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  2154 Clusin Street

  
	
   

  	
  San Jose, CA 95121

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  408-274-8696

  
	
   

  	
  Facsimile No.:

  	
  408-270-8696

  
	
   

  	
   

  
	
   

  	
  Email: langchou@gmail.com

  
	
   

  	
   

  
	
   

  	
  Attention:

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Chi-Huey
  Wong

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Chi-Huey Wong

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price (Subscription Amount):
  $156,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares to be Acquired: 20,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Optimer Pharmaceuticals, Inc.

  
	
   

  	
  c/o Michael Chang

  
	
   

  	
  10110 Sorrento Valley Road, Suite C

  
	
   

  	
  San Diego, CA 92121

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  858-909-0736

  
	
   

  	
  Facsimile No.:

  	
  858-909-0737

  
	
   

  	
   

  
	
   

  	
  Email: Wong@scripps.edu

  
	
   

  	
   

  
	
   

  	
  Attention: Chi-Huey Wong

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o  Optimer Pharmaceuticals,
  Inc. c/o  Michael Chang

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:   10110 Sorrento Valley
  Road, Suite C

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: San Diego, CA 
  92121

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: Chi-Huey Wong

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:858-909-0736

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
  NAME OF PURCHASER:  Fan-Pet
  International Co., Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Li-Hung Chen

  	
   

  
	
   

  	
  Name:

  	
  Li-Hung Chen

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,170,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 150,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  [Illegible]

  
	
   

  	
  Taipei City, Taiwan R.O.C.
  10461

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  886-2-37076868

  
	
   

  	
  Facsimile No.:

  	
  886-2-37076898

  
	
   

  	
   

  
	
   

  	
  Email:

  
	
   

  	
   

  
	
   

  	
  Attention:
  Vicky Chen

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Boston
  Life Science Venture Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [stamp]

  	
   

  
	
   

  	
  Name:

  	
  Peter Wu [Charachters]

  
	
   

  	
  Title:

  	
  Chairman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,500,002.40

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 192,308

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  8F, No. 99, Sec. 2, Tiding
  Blvd.

  
	
   

  	
  Neihu District, Taipei 114

  
	
   

  	
  Taiwan

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  886-2-2627-6000

  
	
   

  	
  Facsimile No.:

  	
  886-2-2798-9816

  
	
   

  	
   

  
	
   

  	
  Email:
  jeanlo@ibtm.com.tw

  
	
   

  	
   

  
	
   

  	
  Attention: Jean Lo

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  President (BVI) International

  Investment Holdings Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Chang-Sheng Lin

  	
   

  
	
   

  	
  Name:

  	
  Chang-Sheng Lin

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,092,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 140,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  10F, No. 11 [Illegible]

  
	
   

  	
  Taipei City, [Illegible]

  
	
   

  	
  Taiwan (R.O.C)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  [Illegible]

  
	
   

  	
  Facsimile No.:

  	
  [Illegible]

  
	
   

  	
   

  
	
   

  	
  Email: [Illegible]

  
	
   

  	
   

  
	
   

  	
  Attention: [Illegible]

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Prudence Venture Investment Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jessica Wu

  	
   

  
	
   

  	
  Name:

  	
  Jessica Wu

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Purchase
  Price (Subscription Amount): $232,798.80

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 29,846

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  3F,
  No. 245, TunHua S. Rd. Sec. 1

  
	
   

  	
  Taipei 106

  
	
   

  	
  Taiwan

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  886-2-8773-3997-809

  
	
   

  	
  Facsimile No.:

  	
  886-2-8773-3800

  
	
   

  	
   

  
	
   

  	
  Email: alice@cidc.com.tw

  
	
   

  	
   

  
	
   

  	
  Attention: Alice Chen

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Grand Cathay Venture Capital III

  Co., Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Edward Chang

  	
   

  
	
   

  	
  Name:

  	
  Edward Chang

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $465,800.40

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 59,718

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  3F, No. 245, Tun Hua S. Rd.
  Sec. 1

  
	
   

  	
  Taipei 106

  
	
   

  	
  Taiwan

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  886-2-8773-3997

  
	
   

  	
  Facsimile No.:

  	
  886-2-8773-3800

  
	
   

  	
   

  
	
   

  	
  Email: alice@cidc.com.tw

  
	
   

  	
   

  
	
   

  	
  Attention: Alice Chen

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Perceptive Life Sciences Master

  Fund Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ James Mannly

  	
   

  
	
   

  	
  Name:

  	
  James Mannly

  
	
   

  	
  Title:

  	
  COO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $6,240,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 800,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  499 Park Ave

  
	
   

  	
  25th Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone:

  	
  646-205-5340

  
	
   

  	
  Facsimile No.:

  	
  646-205-5301

  
	
   

  	
   

  
	
   

  	
  Email: Berger@perceptivelife.com

  
	
   

  	
   

  
	
   

  	
  Attention: Steve Berger

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Deerfield Special Situations Fund

  International, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
  [Illegible]

  
	
   

  	
  Title:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $2,523,300.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 323,500

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Deerfield Management

  
	
   

  	
  780 3rd Ave, 37th
  Floor

  
	
   

  	
  NY, NY 10017

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  212-551-1600

  
	
   

  	
  Facsimile No.:

  	
  212-551-1612

  
	
   

  	
   

  
	
   

  	
  Email:
  dlevine@deerfieldpartners.com

  
	
   

  	
   

  
	
   

  	
  Attention: Darren Levine

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Deerfield Special Situations Fund,

  LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
  [Illegible]

  
	
   

  	
  Title:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,376,700.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 176,500

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Deerfield Management

  
	
   

  	
  780 3rd Ave, 37th
  Floor

  
	
   

  	
  NY, NY 10017

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  212-551-1600

  
	
   

  	
  Facsimile No.:

  	
  212-551-1612

  
	
   

  	
   

  
	
   

  	
  Email:
  dlevine@deerfieldpartners.com

  
	
   

  	
   

  
	
   

  	
  Attention: Darren Levine

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Biotech Target N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [Illegible]  [Illegible]

  	
   

  
	
   

  	
  Name:

  	
  [Illegiblie] [Illegible]

  
	
   

  	
  Title:

  	
  Authorized Signatories

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $2,340,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 300,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Shipweg 26

  
	
   

  	
  Curacao

  
	
   

  	
  Netherlands Antilles

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  +5999 461 0140

  
	
   

  	
  Facsimile No.:

  	
  +5999 461 0144

  
	
   

  	
   

  
	
   

  	
  Email:
  jan.bootsma@amnv-curacao.com

  
	
   

  	
   

  
	
   

  	
  Attention: Mr. Jan Bootsma

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o Bellevue Asset Management AG

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:  Seestrasse 16

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 8700 Kuesnacht, Switzerland

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: Mr. Pascal Schmucki

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:+41 44 267 67 00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
  NAME OF PURCHASER:  Tang Capital Partners, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Kevin C. Tang

  	
   

  
	
   

  	
  Name:

  	
  Kevin C. Tang

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $2,340,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 300,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  4401 Eastgate Mall

  
	
   

  	
  San Diego, CA 92121

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  858-550-3830

  
	
   

  	
  Facsimile No.:

  	
  858-550-3837

  
	
   

  	
   

  
	
   

  	
  Email:
  jlemkey@tangcapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: John Lemkey

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Visium Balanced Offshore Fund

  Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Mark Gottlieb

  	
   

  
	
   

  	
  Name:

  	
  Mark Gottlieb

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $642,876.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 82,420

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  950 Third Avenue, 29th
  Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  646-840-5800

  
	
   

  	
  Facsimile No.:

  	
  646-840-5801

  
	
   

  	
   

  
	
   

  	
  Email:
  mgottlieb@visiumfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Mark Gottlieb

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Visium Balanced Fund, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Mark Gottlieb

  	
   

  
	
   

  	
  Name:

  	
  Mark Gottlieb

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $315,361.80

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 40,431

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  950 Third Avenue, 29th
  Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  646-840-5800

  
	
   

  	
  Facsimile No.:

  	
  646-840-5801

  
	
   

  	
   

  
	
   

  	
  Email:
  mgottlieb@visiumfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Mark Gottlieb

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Visium Long Bias Fund, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Mark Gottlieb

  	
   

  
	
   

  	
  Name:

  	
  Mark Gottlieb

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $179,774.40

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 23,048

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  950 Third Avenue, 29th
  Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  646-840-5800

  
	
   

  	
  Facsimile No.:

  	
  646-840-5801

  
	
   

  	
   

  
	
   

  	
  Email:
  mgottlieb@visiumfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Mark Gottlieb

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Visium Long Bias Offshore Fund,

  Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Mark Gottlieb

  	
   

  
	
   

  	
  Name:

  	
  Mark Gottlieb

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $537,685.20

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 68,934

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  950 Third Avenue, 29th
  Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  646-840-5800

  
	
   

  	
  Facsimile No.:

  	
  646-840-5801

  
	
   

  	
   

  
	
   

  	
  Email:
  mgottlieb@visiumfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Mark Gottlieb

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Atlas Master Fund, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Scott Schroeder

  	
   

  
	
   

  	
  Name:

  	
  Scott Schroeder

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $79,302.60

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 10,167

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  135 East 57th
  Street, 27th Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  212-808-2300

  
	
   

  	
  Facsimile No.:

  	
  212-808-2301

  
	
   

  	
   

  
	
   

  	
  Email: Kjohansen@bamfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Kirk Johansen

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Enable Growth Partners LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Brendan O’Neil

  	
   

  
	
   

  	
  Name:

  	
  Brendan O’Neil

  
	
   

  	
  Title:

  	
  Principal and Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,160,250.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 148,750

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  One Ferry Building, Suite
  255

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  415-677-1578

  
	
   

  	
  Facsimile No.:

  	
  415-677-1580

  
	
   

  	
   

  
	
   

  	
  Email:
  boneil@enablecapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: Brendan O’Neil

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Enable Opportunity Partners LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Brendan O’Neil

  	
   

  
	
   

  	
  Name:

  	
  Brendan O’Neil

  
	
   

  	
  Title:

  	
  Principal and Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $136,500.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 17,500

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  One Ferry Building, Suite
  255

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  415-677-1578

  
	
   

  	
  Facsimile No.:

  	
  415-677-1580

  
	
   

  	
   

  
	
   

  	
  Email:
  boneil@enablecapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: Brendan O’Neil

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER: Pierce Diversified Strategy Master

  Fund LLC, Ena

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Brendan O’Neil

  	
   

  
	
   

  	
  Name:

  	
  Brendan O’Neil

  
	
   

  	
  Title:

  	
  Principal and Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $68,250.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 8,750

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  One Ferry Building, Suite
  255

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
  415-677-1578

  
	
   

  	
  Facsimile No.:

  	
  415-677-1580

  
	
   

  	
   

  
	
   

  	
  Email:
  boneil@enablecapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: Brendan O’Neil

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 
















 


	
   

  	
  NAME OF PURCHASER:  Steelhead
  Investments Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  HBK Services LLC, Investment Advisor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ J. Baker Gentry, Jr.

  	
   

  
	
   

  	
  Name:

  	
  J. Baker Gentry, Jr.

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $1,170,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 150,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  c/o HBK Services LLC

  
	
   

  	
  300 Crescent Court, Suite
  700

  
	
   

  	
  Dallas, TX 75201

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  214-758-6107

  
	
   

  	
  Facsimile
  No.:

  	
  214-758-1207

  
	
   

  	
   

  
	
   

  	
  Email: legal@hbk.com

  
	
   

  	
   

  
	
   

  	
  Attention: Legal
  Department

  
								



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  The
  Jay Goldman Master L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Eric Wasserman

  	
   

  
	
   

  	
  Name:

  	
  Eric Wasserman

  
	
   

  	
  Title:

  	
  Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $560,430.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 71,850

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  152 West 57th
  Street

  
	
   

  	
  48th Floor

  
	
   

  	
  New York, NY 10019

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  212-262-4268

  
	
   

  	
  Facsimile
  No.:

  	
  212-262-9550

  
	
   

  	
   

  
	
   

  	
  Email: [Illegible]

  
	
   

  	
   

  
	
   

  	
  Attention: Adam Reback,
  CCO

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Broadview
  Partners, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jay G. Goldman

  	
   

  
	
   

  	
  Name:

  	
  Jay G. Goldman

  
	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $31,239.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 4,005

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  152 West 57th
  Street

  
	
   

  	
  48th Floor

  
	
   

  	
  New York, NY 10019

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  212-262-4200

  
	
   

  	
  Facsimile
  No.:

  	
  212-262-9550

  
	
   

  	
   

  
	
   

  	
  Email: AReback@JGoldman.net

  
	
   

  	
   

  
	
   

  	
  Attention: Adam Reback,
  CCO

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Woodmont
  Investments, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jay G. Goldman

  	
   

  
	
   

  	
  Name:

  	
  Jay G. Goldman

  
	
   

  	
  Title:

  	
  [Illegible]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $578,331.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 74,145

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  c/o EQ Fund Services (BVI)
  Ltd.

  
	
   

  	
  Palm Grove House, P.O. Box
  438

  
	
   

  	
  [Illegible]

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  212-262-4268

  
	
   

  	
  Facsimile
  No.:

  	
  212-262-9550

  
	
   

  	
   

  
	
   

  	
  Email: AReback@JGoldman.net

  
	
   

  	
   

  
	
   

  	
  Attention: Adam Reback,
  CCO

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
  J. Goldman & Co., L.P.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
  152 West 57th Street, 48th Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
  New York, NY 10019

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Adam Reback - CCO

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
  212-262-4268

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Balyasny
  Asset Management

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jeff Kreick

  	
   

  
	
   

  	
  Name:

  	
  Jeff Kreick

  
	
   

  	
  Title:

  	
  Healthcare Analyst

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $780,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 100,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Jeff Kreick

  
	
   

  	
  135 East 57th
  Street, 27th Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  212-808-2303

  
	
   

  	
  Facsimile
  No.:

  	
  212-808-2301

  
	
   

  	
   

  
	
   

  	
  Email:
  jkreick@bamfunds.com

  
	
   

  	
   

  
	
   

  	
  Attention: Jeff Kreick

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  UBS O’Connor LLC F/B/O

  O’Connor Pipes Corporate Strategies Master Limited

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jeffrey Putnam

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey Putnam

  
	
   

  	
  Title:

  	
  Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $546,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 70,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  c/o UBS O’Connor LLC

  
	
   

  	
  Attn: Rob Murray

  
	
   

  	
  One North Water Drive, 32nd
  Floor

  
	
   

  	
  Chicago, IL 68606

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  312-525-6247

  
	
   

  	
  Facsimile
  No.:

  	
  312-525-6271

  
	
   

  	
   

  
	
   

  	
  Email: [Illegible]

  
	
   

  	
   

  
	
   

  	
  Attention: Rob Murray

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
  Same

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  DWS
  Medical Innovations Fund

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
  [Illegible]

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $390,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 50,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  State Street Bank GmbH,
  [Illegible]

  
	
   

  	
  [Illegible]

  
	
   

  	
  65760 Eschborn

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.:

  	
  +49-69-710443556

  
	
   

  	
  Facsimile
  No.:

  	
  +49-69-710443604

  
	
   

  	
   

  
	
   

  	
  Email:
  eschborn-+p-m@statestreet.com

  
	
   

  	
   

  
	
   

  	
  Attention: Investor
  Services

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o State Street
  Bank GmbH, [Illegible]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street: [Illegible]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip: 65760
  Eschborn

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: Investor Services

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No. +49-69-710443556

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
  NAME OF PURCHASER:  Mediphase Offshore Master Fund,

  L.P.

  
	
   

  	
   

  
	
   

  	
  By: Mediphase Capital
  Partners, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Paul A. Howard

  	
   

  
	
   

  	
  Name:

  	
  Paul A. Howard

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $390,000.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 50,000

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Mediphase

  
	
   

  	
  3 Newton Executive Park,
  Suite 104

  
	
   

  	
  Newton, MA 02462

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  617-332-3408
  x102

  
	
   

  	
  Facsimile
  No.:

  	
  617-332-8463

  
	
   

  	
   

  
	
   

  	
  Email:
  phoward@mediphaseventure.com

  
	
   

  	
   

  
	
   

  	
  Attention: Paul Howard

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Broadfin
  Healthcare Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Kevin Kotler

  	
   

  
	
   

  	
  Name:

  	
  Kevin Kotler, Broadfin Advisors, LLC

  
	
   

  	
  Title:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $165,500.40

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 21,218

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Broadfin Capital, LLC

  
	
   

  	
  237 Park Avenue, Suite 900

  
	
   

  	
  New York, NY 10017

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-808-2461

  
	
   

  	
  Facsimile
  No.:

  	
  212-808-2464

  
	
   

  	
   

  
	
   

  	
  Email:
  kevin@broadfincapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: Kevin Kotler

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Broadfin Healthcare Offshore Fund,

  Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Kevin Kotler

  	
   

  
	
   

  	
  Name:

  	
  Kevin Kotler

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $146,499.60

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 18,782

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  Broadfin Capital, LLC

  
	
   

  	
  237 Park Avenue, Suite 900

  
	
   

  	
  New York, NY 10017

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-808-2461

  
	
   

  	
  Facsimile
  No.:

  	
  212-808-2464

  
	
   

  	
   

  
	
   

  	
  Email:
  kevin@broadfincapital.com

  
	
   

  	
   

  
	
   

  	
  Attention: Kevin Kotler

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF
  PURCHASER:  Iroquois Master Fund Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ [illegible]

  	
   

  
	
   

  	
  Name:

  	
  [Illegible]

  
	
   

  	
  Title:

  	
  [Illegible]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $294,200.40

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 37,718

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  [Illegible]

  
	
   

  	
  New York, NY

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-974-3070

  
	
   

  	
  Facsimile
  No.:

  	
  [Illegible]

  
	
   

  	
   

  
	
   

  	
  Email: [Illegible]

  
	
   

  	
   

  
	
   

  	
  Attention: [Illegible]

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF PURCHASER:  Baker/Tisch
  Investments, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Baker/Tisch Capital, L.P., (general partner)

  
	
   

  	
  By:  Baker/Tisch Capital (GP), LLC, (general partner)

  
	
   

  	
  By:  Felix Baker, Ph.D., Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $585.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 75

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  667 Madison Ave, 17th
  Floor

  
	
   

  	
  New York, NY 10065

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-339-5633

  
	
   

  	
  Facsimile
  No.:

  	
  212-339-5688

  
	
   

  	
   

  
	
   

  	
  Email:
  lkirby@bbinvestments.com

  
	
   

  	
   

  
	
   

  	
  Attention: Leo Kirby

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF
  PURCHASER:  Baker Bros. Investments II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Baker Bros. Capital, L.P., (general partner)

  
	
   

  	
  By:  Baker Bros. Capital (GP), LLC, (general partner)

  
	
   

  	
  By:  Felix Baker, Ph.D., Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $499.20

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 64

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  667 Madison Ave, 17th
  Floor

  
	
   

  	
  New York, NY 10065

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-339-5633

  
	
   

  	
  Facsimile
  No.:

  	
  212-339-5688

  
	
   

  	
   

  
	
   

  	
  Email:
  lkirby@bbinvestments.com

  
	
   

  	
   

  
	
   

  	
  Attention: Leo Kirby

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF
  PURCHASER:  Baker Brothers Life Sciences, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Baker Brothers Life Sciences Capital, L.P., (general
  partner)

  
	
   

  	
  By:  Baker Brothers Life Sciences Capital (GP), LLC, (general
  partner)

  
	
   

  	
  By:  Felix Baker, Ph.D., Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $185,749.20

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 23,814

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  667 Madison Ave, 17th
  Floor

  
	
   

  	
  New York, NY 10065

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-339-5633

  
	
   

  	
  Facsimile
  No.:

  	
  212-339-5688

  
	
   

  	
   

  
	
   

  	
  Email:
  lkirby@bbinvestments.com

  
	
   

  	
   

  
	
   

  	
  Attention: Leo Kirby

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF
  PURCHASER:  14159, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  14159 Capital, L.P., (general partner)

  
	
   

  	
  By:  14159 Capital (GP), LLC, (general partner)

  
	
   

  	
  By:  Felix Baker, Ph.D., Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $5,904.60

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired: 757

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  667 Madison Ave, 17th
  Floor

  
	
   

  	
  New York, NY 10065

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-339-5633

  
	
   

  	
  Facsimile
  No.:

  	
  212-339-5688

  
	
   

  	
   

  
	
   

  	
  Email:
  lkirby@bbinvestments.com

  
	
   

  	
   

  
	
   

  	
  Attention: Leo Kirby

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


	
   

  	
  NAME OF
  PURCHASER:  Baker Biotech Fund I, L.P.

  
	
   

  	
   

  
	
   

  	
  By:  Baker Biotech Capital, L.P., (general partner)

  
	
   

  	
  By:  Baker Biotech Capital (GP), LLC, (general partner)

  
	
   

  	
  By:  Felix Baker, Ph.D., Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate
  Purchase Price (Subscription Amount): $41,262.00

  
	
   

  	
   

  
	
   

  	
  Number of Shares
  to be Acquired:

  
	
   

  	
                                                  Cert
  #1: 2,342 shares; Cert #2: 2,948

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notice:

  
	
   

  	
   

  
	
   

  	
  667 Madison Ave, 17th
  Floor

  
	
   

  	
  New York, NY
  10065

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.

  	
  212-339-5633

  
	
   

  	
  Facsimile
  No.:

  	
  212-339-5688

  
	
   

  	
   

  
	
   

  	
  Email:
  lkirby@bbinvestments.com

  
	
   

  	
   

  
	
   

  	
  Attention: Leo Kirby

  
							



 


 


	
  Delivery Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (if different than above)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  c/o

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 

















 


EXHIBITS:


 


	
  A:

  	
   

  	
  Form of Registration Rights Agreement

  
	
  B-1:

  	
   

  	
  Accredited Investor Questionnaire

  
	
  B-2:

  	
   

  	
  Stock Certificate Questionnaire

  
	
  C:

  	
   

  	
  Form of Opinion of Company Counsel

  
	
  D:

  	
   

  	
  Irrevocable Transfer Agent Instructions

  
	
  E:

  	
   

  	
  Form of Secretary’s Certificate

  
	
  F:

  	
   

  	
  Form of Officer’s Certificate

  



 

















 


EXHIBIT
A


 


Form of
Registration Rights Agreement


 


[The Registrations Right Agreement is
attached as Exhibit 4.4 to the Current Report on Form 8-K filed by Optimer
Pharmaceuticals, Inc. on October 29, 2007]


 

















 


Instruction Sheet


 


(to
be read in conjunction with the entire Securities Purchase Agreement and
Registration Rights Agreement)


 


A.            Complete the following items in the
Securities Purchase Agreement and/or Registration Rights Agreement:


 


1.                                      Provide the information regarding the
Purchaser requested on the signature page. The Securities Purchase Agreement
and the Registration Rights Agreement must be executed by an individual
authorized to bind the Purchaser.


 


2.                                     Exhibit B-1 – Accredited Investor Questionnaire:


 


Provide
the information requested by the Accredited Investor Questionnaire


 


3.                                     Exhibit B-2 Stock Certificate Questionnaire:


 


Provide
the information requested by the Stock Certificate Questionnaire


 


4.                                     Annex B to the Registration Rights Agreement — Selling Securityholder Notice and
Questionnaire


 


Provide
the information requested by the Selling Securityholder Notice and
Questionnaire


 


5.                                     Return the signed Securities Purchase
Agreement and Registration Rights Agreement to:


 


David W. Stadinski


Piper Jaffray & Co.


150 East 42nd Street, 35th Floor


New York, New York 10017


Tel: (212) 284-9572


Fax: (212) 658-9604


Email:  david.w.stadinski@pjc.com


 


B.                                     Instructions regarding the transfer of funds
for the purchase of Shares is set forth on Exhibit G to the Securities
Purchase Agreement.


 

















 


EXHIBIT B-1


 


ACCREDITED
INVESTOR QUESTIONNAIRE


(ALL
INFORMATION WILL BE TREATED CONFIDENTIALLY)


 


To:          Optimer Pharmaceuticals, Inc.


 


This Investor Questionnaire (“Questionnaire”) must be completed
by each potential investor in connection with the offer and sale of the shares
of the common stock, par value $0.001 per share (the “Securities”), of Optimer Pharmaceuticals, Inc., a
Delaware corporation (the “Corporation”). The Securities are being
offered and sold by the Corporation without registration under the Securities
Act of 1933, as amended (the “Act”), and the securities laws of certain
states, in reliance on the exemptions contained in Section 4(2) of the Act
and on Regulation D promulgated thereunder and in reliance on similar
exemptions under applicable state laws. The Corporation must determine that a
potential investor meets certain suitability requirements before offering or
selling Securities to such investor. The purpose of this Questionnaire is to
assure the Corporation that each investor will meet the applicable suitability
requirements. The information supplied by you will be used  in determining whether you meet such
criteria, and reliance upon the private offering exemptions from registration
is based in part on the information herein supplied.


 


This Questionnaire does not constitute an offer to sell or a
solicitation of an offer to buy any security. Your answers will be kept
strictly confidential. However, by signing this Questionnaire, you will be
authorizing the Corporation to provide a completed copy of this Questionnaire
to such parties as the Corporation deems appropriate in order to ensure that
the offer and sale of the Securities will not result in a violation of the Act
or the securities laws of any state and that you otherwise satisfy the
suitability standards applicable to purchasers of the Securities. All potential
investors must answer all applicable questions and complete, date and sign this
Questionnaire. Please print or type your responses and attach additional sheets
of paper if necessary to complete your answers to any item.


 


	
  PART A.

  	
   

  	
  BACKGROUND INFORMATION

  
	
   

  
	
  Name of Beneficial
  Owner of the Securities:

  
	
   

  
	
  Business Address:

  
	
   

  	
   

  	
  (Number and
  Street)

  	
   

  	
   

  
	
   

  
	
  (City)

  	
   

  	
  (State)

  	
   

  	
  (Zip Code)

  
	
   

  	
   

  	
   

  
	
  Telephone Number: (      )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If a
  corporation, partnership, limited liability company, trust or other entity:

  
	
  Type of entity:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  State of formation:

  	
   

  	
  Approximate Date of
  formation:

  
	
   

  
	
  Were
  you formed for the purpose of investing in the securities being offered?

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Yes  o     No  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If an
  individual:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Residence Address:

  
	
   

  	
   

  	
  (Number and
  Street)

  	
   

  	
   

  
	
   

  
	
  (City)

  	
   

  	
  (State)

  	
   

  	
  (Zip Code)

  
												



 

















 


Telephone Number: (      )


 


Age:                       Citizenship:                           Where registered to vote:


 


Set
forth in the space provided below the state(s), if any, in the United States in
which you maintained your residence during the past two years and the dates
during which you resided in each state:


 


Are you a director or executive officer of the
Corporation?


 


Yes  o     No  o


 


Social Security or
Taxpayer Identification No.


 


PART B.                ACCREDITED INVESTOR
QUESTIONNAIRE


 


In
order for the Company to offer and sell the Securities in conformance with
state and federal securities laws, the following information must be obtained
regarding your investor status. Please initial each category  applicable to you as a Purchaser of
Securities of the Company.


 


     (1)                   A bank as defined in Section 3(a)(2) of the Securities Act, or any
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity;


 


    
(2)                   A broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934;


 


     (3)                   An insurance company as defined in Section 2(13) of the Securities Act;


 


     (4)                   An investment company registered under the Investment Company Act of 1940
or a business development company as defined in Section 2(a)(48) of that Act;


 


     (5)                   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;


 


     (6)                   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 plan has total assets in excess of
$5,000,000;


 


     (7)                   An employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such act, which is either a bank,
savings and loan association, insurance company, or registered investment
adviser, 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;


 


     (8)                   A private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940;


 

















 


     (9)                   An organization described in Section 501(c)(3) of the Internal Revenue
Code, a corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the Securities, with total
assets in excess of $5,000,000;


 


     (10)   A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring the Securities,
whose purchase is directed by a sophisticated person who has such knowledge and
experience in financial and business matters that such person is capable of
evaluating the merits and risks of investing in the Company;


 


     (11)             A natural person whose individual net worth, or joint net worth with that
person’s spouse, at the time of his purchase exceeds $1,000,000;


 


     (12)             A natural person who had an individual income
in excess of $200,000 in each of the two most recent years, or joint income
with that person’s spouse in excess of $300,000, in each of those years, and
has a reasonable expectation of reaching the same income level in the current
year;


 


     (13)             An executive officer or director of the Company;


 


     (14)
  An entity in which all of the equity
owners qualify under any of the above subparagraphs. If the undersigned belongs
to this investor category only, list the equity owners of the undersigned, and
the investor category which each such equity owner satisfies.


 


A.            FOR EXECUTION BY AN INDIVIDUAL:


 


	
   

  	
   

  	
  By

  	
   

  	
   

  
	
  Date

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  	
   

  
						



 


B.            FOR EXECUTION BY AN ENTITY:


 


	
  Entity Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
  Date

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
										



 


C.            ADDITIONAL SIGNATURES (if required
by partnership, corporation or trust document):


 


	
  Entity Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
  Date

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
										



 


	
  Entity Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
  Date

  	
   

  
	
   

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
										



 


 
















 


EXHIBIT B-2


 


Stock Certificate
Questionnaire


 


	
   

  	
   

  	
  Pursuant to Section 2.2(b)
  of the Agreement, please provide us with the following information:

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  The exact name that the
  Shares are to be registered in (this is the name that will appear on the
  stock certificate(s)). You may use a nominee name if appropriate:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  The relationship between
  the Purchaser of the Shares and the Registered Holder listed in response to
  Item 1 above:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The mailing address,
  telephone and telecopy number of the Registered Holder listed in response to
  Item 1 above:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The Tax Identification
  Number (or, if an individual, the Social Security Number) of the Registered
  Holder listed in response to Item 1 above:

  	
   

  



 

















 


EXHIBIT
C


 


Form of Opinion of Company
Counsel


 


1.             The Company has been duly
incorporated and is a validly existing corporation in good standing under the
laws of the State of Delaware.


 


2.             The Company has the requisite
corporate power to own its property and assets and to conduct its business as
it is currently being conducted.


 


3.             The Company is duly qualified to do
business as a foreign corporation and is in good  standing
under the laws of the State of California.


 


4.             The Company has the requisite
corporate power to execute, deliver and perform its obligations under the
Financing Agreements, including, without limitation, to issue, sell and deliver
the Shares under the Purchase Agreement.


 


5.             Each of the Financing Agreements
has been duly and validly authorized, executed and delivered by the Company and
each such agreement constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its respective terms, except
as rights to indemnity and contribution under the Financing Documents may be limited
by applicable laws and except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors’ rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.


 


6.             The Company’s authorized capital
stock consists of seventy five million (75,000,000) shares of Common Stock, par
value $0.001 per share, and ten million (10,000,000) shares of Preferred Stock,
par value $0.001 per share. The Shares have been duly authorized, and upon
issuance and delivery against payment therefor in accordance with the terms of
the Purchase Agreement, the Shares will be validly issued, outstanding, fully
paid and nonassessable, and free of any preemptive right or similar rights
contained in the Company’s Certificate of Incorporation, Bylaws or any Material
Agreement.


 


7.             The execution and delivery of the
Financing Agreements by the Company and the issuance of the Shares pursuant
thereto do not violate any provision of the Company’s Certificate of
Incorporation or Bylaws, do not constitute a default under or a material breach
of any Material Agreement, and do not violate (a) any governmental statute,
rule or regulation which in our experience is typically applicable to
transactions of the nature contemplated by the Financing Agreements or (b) any
order, writ, judgment, injunction, decree, determination or award which has
been entered against the Company and of which we are aware, in each case to the
extent the violation of which would materially and adversely affect the Company
and its subsidiaries, taken as a whole.


 


8.             To our knowledge, there is no
action, proceeding or investigation pending or overtly threatened against the
Company before any court or administrative agency that questions the validity
or enforceability of the Financing Agreements, or seeks to enjoin the
performance of the Financing Agreements or that could reasonably be expected to
result, either individually or in the aggregate, in a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole.


 


9.             All consents, approvals,
authorizations, or orders of, and filings, registrations, and qualifications
with any U.S. Federal or California regulatory authority or governmental body
or the under the DGCL required for the issuance of the Shares, have been made
or obtained, except (a) for the filing of a Form D pursuant to Securities and
Exchange Commission Regulation D, and (b) for the filing of the notice to be
filed under California Corporations Code Section 25102.1(d).


 

















 


10.           The offer and sale of the
Shares are exempt from the registration requirements of the Securities Act of
1933, as amended, subject to the timely filing of a Form D pursuant to
Securities and Exchange Commission Regulation D.


 


11.           To our knowledge, there are no
written contracts, agreements or understandings between the Company and any
person granting such person the right (other than rights which have been waived
in writing or otherwise satisfied) to require the Company to include any
securities of the Company in any registration statement contemplated by Section
2 of the Registration Rights Agreement.


 

















 


EXHIBIT D


 


Form of Irrevocable Transfer Agent
Instructions


 


As of                       


 


American Stock Transfer
& Trust Company


[Address]


[Address]


Attn:


 


Ladies and Gentlemen:


 


Reference is made to that certain Securities
Purchase Agreement, dated as of October 23, 2007 (the “Agreement”), by and among Optimer
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the purchasers named on the signature pages
thereto (collectively, and including permitted transferees, the “Holders”), pursuant to which the Company
is issuing to the Holders shares (the “Shares”)
of Common Stock of the Company, par value $0.001 per share (the “Common Stock”).


 


This letter shall serve as our irrevocable
authorization and direction to you (provided that you are the transfer agent of
the Company at such time and the conditions set forth in this letter are
satisfied), subject to any stop transfer instructions that we may issue to you
from time to time, if any, to issue certificates representing shares of Common
Stock upon transfer or resale of the Shares.


 


You acknowledge and agree that so long as you have received
(a) written confirmation from the Company that either (1) a
registration statement covering resales of the Shares has been declared
effective by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Securities Act”),
or (2) the Shares have been sold in conformity with Rule 144 under
the Securities Act (“Rule 144”)
or are eligible for sale under Rule 144(k) and (b) if applicable, a copy
of such registration statement, then, unless otherwise required by law, within
three (3) business days of your receipt of a notice of transfer, you shall
issue the certificates representing the Shares registered in the names of such
Holders or transferees, as the case may be, and such certificates shall not
bear any legend restricting transfer of the Shares thereby and should not be
subject to any stop-transfer restriction; provided,
however, that if such Shares are not registered for resale under the
Securities Act or able to be sold under Rule 144, then the certificates for
such Shares shall bear the following legend:


 


THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I)
IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION


 

















 


WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 


A form of written confirmation from the
Company’s outside legal counsel that a registration statement covering resales
of the Shares has been declared effective by the Commission under the
Securities Act is attached hereto as Annex I.


 


Please be advised that the Holders are
relying upon this letter as an inducement to enter into the Agreement and,
accordingly, each Holder is a third party beneficiary to these instructions.


 


Please execute this letter in the space
indicated to acknowledge your agreement to act in accordance with these
instructions.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  OPTIMER PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


Acknowledged and Agreed:


 


	
  AMERICAN STOCK TRANSFER & TRUST COMPANY

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
  Date:                                     

  
						



 

















 


Annex I


 


FORM OF NOTICE OF EFFECTIVENESS OF
REGISTRATION STATEMENT 


 


	
  American Stock Transfer &
  Trust Company

  [Address]

  [Address]

  Attn:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Re: Optimer Pharmaceuticals,
  Inc.

  	
   

  	
   

  



 


Ladies and Gentlemen:


 


Reference is made to that certain Securities
Purchase Agreement, dated as of October 23, 2007, entered into by and among
Optimer Pharmaceuticals, Inc. (the “Company”)
and the buyers named therein (collectively, the “Purchasers”) pursuant to which the Company issued to the
Purchasers shares of the Company’s common stock, $0.001 par value per share
(the “Common Stock”). Pursuant to
that certain Registration Rights Agreement of even date, the Company agreed to
register the resale of the Common Stock (the “Registrable
Securities”), under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the Company’s
obligations under the Registration Rights Agreement, on                     
,        , the Company filed a
Registration Statement on Form S-1 (File No. 333-                    
) (the “Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) relating to the Registrable Securities which
names each of the Purchasers as a selling stockholder thereunder.


 


In connection with the foregoing, we advise
you that a member of the Commission’s staff has advised us by telephone that
the Commission has entered an order declaring the Registration Statement
effective under the Securities Act at         
[a.m.][p.m.] on                    
,           .


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  Optimer Pharmaceuticals, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  



 


	
  CC:

  	
   

  	
  Purchasers

  
	
   

  	
   

  	
  Piper Jaffray & Co.

  



 

















 


 


EXHIBIT E


 


Form of Secretary’s Certificate


 


The undersigned hereby certifies that he is the duly
elected, qualified and acting Secretary of Optimer Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and that as such he is
authorized to execute and deliver this certificate in the name and on behalf of
the Company and in connection with the Securities Purchase Agreement, dated as
of October 23, 2007, by and among the Company and the investors party thereto
(the “Securities Purchase Agreement”),
and further certifies in his official capacity, in the name and on behalf of
the Company, the items set forth below. Capitalized terms used but not
otherwise defined herein shall have the meaning set forth in the Securities
Purchase Agreement.


 


1.                                       Attached
hereto as Exhibit A is a true, correct and complete copy of the
resolutions duly adopted by the Board of Directors of the Company at a meeting
of the Board of Directors held on               
, 2007. Such resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and
including the date hereof and are now in full force and effect.


 


2.                                       Attached
hereto as Exhibit B is a true, correct and complete copy of the
Certificate of Incorporation of the Company, together with any and all
amendments thereto currently in effect, and no action has been taken to further
amend, modify or repeal such Certificate of Incorporation, the same being in
full force and effect in the attached form as of the date hereof.


 


3.                                       Attached
hereto as Exhibit C is a true, correct and complete copy of the Bylaws
of the Company and any and all amendments thereto currently in effect, and no
action has been taken to further amend, modify or repeal such Bylaws, the same
being in full force and effect in the attached form as of the date hereof.


 


4.                                       Each
person listed below has been duly elected or appointed to the position(s)
indicated opposite his name and is duly authorized to sign the Securities
Purchase Agreement and each of the Transaction Documents on behalf of the
Company, and the signature appearing opposite such person’s name below is such
person’s genuine signature.


 


 


	
  Name

  	
   

  	
  Position

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Michael N. Chang, Ph.D

  	
   

  	
  President and Chief Executive Officer

  	
   

  	
   

  
	
  John D. Prunty

  	
   

  	
  Chief Financial Officer

  	
   

  	
   

  



 


IN WITNESS WHEREOF, the undersigned has hereunto set
his hand as of this         day of               
, 2007.


 


	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  



 


16

















 


I, Michael N. Chang, Ph.D, President and Chief
Executive Officer, hereby certify that                 
is the duly elected, qualified and acting Secretary of the Company and that the
signature set forth above is his true signature.


 


	
   

  	
   

  	
   

  
	
   

  	
  Michael N. Chang, Ph.D

  
	
   

  	
  President and Chief Executive Officer

  



 


17

















 


EXHIBIT A


 


Resolutions


 


18

















 


EXHIBIT B


 


Certificate of
Incorporation


 


19

















 


EXHIBIT C


 


Bylaws


 


20

















 


EXHIBIT F


 


Form of Officer’s Certificate


 


The undersigned, the President and Chief Executive Officer of Optimer Pharmaceuticals, Inc., a
Delaware corporation (the “Company”),
pursuant to Section 5.1(g) of the Securities Purchase Agreement, dated as of
October 23, 2007, by and among the Company and the investors signatory thereto
(the “Securities Purchase Agreement”),
hereby represents, warrants and certifies as follows (capitalized terms used
but not otherwise defined herein shall have the meaning set forth in the
Securities Purchase Agreement):


 


1.                                       The representations and warranties of the
Company contained in the Securities Purchase Agreement are true and correct in
all material respects as of the date when made and as of the Closing Date, as
though made on and as of such date, except for such representations and
warranties that speak as of a specific date.


 


2.                                       The Company has
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by it at or prior to the Closing.


 


IN WITNESS WHEREOF,
the undersigned has executed this certificate this       
day of October, 2007.


 


	
   

  	
   

  	
   

  
	
   

  	
  Michael N. Chang, Ph.D

  
	
   

  	
  President and Chief Executive Officer

  



 


21