Attached files
| file | filename |
|---|---|
| 8-K - Isoray, Inc. | v206654_8k.htm |
| EX-4.25 - Isoray, Inc. | v206654_ex4-25.htm |
| EX-4.24 - Isoray, Inc. | v206654_ex4-24.htm |
AMENDMENT
AGREEMENT
AMENDMENT AGREEMENT (the
"Agreement"), dated as
of December 27, 2010, by and among IsoRay, Inc., a Minnesota corporation (the
"Company") and the
investor that is a signatory to this Agreement (the "Investor").
WHEREAS:
A.
The Company entered into that certain Securities Purchase Agreement, dated
as of November 22, 2010 (the "Existing Securities Purchase
Agreement"), pursuant to which, among other things, the Investor
purchased from the Company pursuant to the Registration Statement (i) a warrant
to initially acquire up to that number of additional shares of common stock of
the Company, par value $0.001 per share ("Common Stock") set forth
opposite the Investor's name in column (4) on the Schedule of Buyers attached
thereto (the "Schedule of
Buyers") (the "Existing
Series A Warrants") and (ii) a warrant to initially acquire up to that
number of additional shares of Common Stock set forth opposite the Investor's
name in column (6) on the Schedule of Buyers (the "Existing Series C Warrants",
and together with the Existing Series A Warrants, the "Existing
Warrants.")
B.
The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, the Investor shall amend and restate the
Existing Warrants such that the terms thereof will be reflected in (i) the
Amended and Restated Series A Warrant To Purchase Common Stock attached hereto
as Exhibit A
and (ii) the Amended and Restated Series C Warrant To Purchase Common Stock
attached hereto as Exhibit B (the "Amended and Restated
Warrants").
C.
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to them in the Existing Securities
Purchase Agreement, as amended hereby.
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises hereinafter set
forth, the Company and the Investor hereby agree as follows:
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1.
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AMENDMENT OF
EXISTING WARRANTS.
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(a) Amendment. Subject
to satisfaction (or waiver) of the conditions set forth in Sections 4 and 5 below, the Existing
Warrants shall be amended and restated such that the terms thereof will be as
reflected in the Amended and Restated Warrants. In connection
therewith, at the closing contemplated by this Agreement (the "Closing"), the Company shall
deliver the Amended and Restated Warrants to the Investor and the Existing
Warrants shall be deemed to be (i) amended, restated and superseded by the
Amended and Restated Warrants and (ii) surrendered to the Company for
cancellation.
(b) Closing
Date. The date and time of the Closing (the "Closing Date") shall be 10:00
a.m., New York Time, on the date hereof, subject to notification of satisfaction
(or waiver) of the conditions to the Closing set forth in Sections 4 and 5 below (or such other
date as is mutually agreed by the Company and the Investor). The
Closing shall occur on the Closing Date at the offices of Schulte Roth &
Zabel LLP, 919 Third Avenue, New York, New York 10022.
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2.
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REPRESENTATIONS AND
WARRANTIES
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(a) Investor Representations and
Warranties. The Investor hereby represents and warrants to the
Company, as of the date hereof and as of the Closing Date, as
follows:
(i) Organization;
Authority. The Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to
consummate the transactions contemplated by this Agreement and carry out its
obligations hereunder. The execution, delivery and performance by the Investor
of the transactions contemplated by this Agreement has been duly authorized by
all necessary action on the part of the Investor. This Agreement has
been duly executed by the Investor, and when delivered by the Investor in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of the Investor, enforceable against it in accordance with its terms,
except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
(ii) No
Conflicts. The execution, delivery and performance by the
Investor of this Agreement and the consummation by the Investor of the
transactions contemplated hereby will not (i) result in a violation of the
organizational documents of the Investor or (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
the Investor 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 the Investor, 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 the Investor to perform its obligations
hereunder.
(iii) Ownership of Existing
Warrants. The Investor is the record and beneficial owner of
the Existing Warrants and will be deemed to have transferred and delivered to
the Company at the Closing valid title to the Existing Warrants, free from
preemptive or similar rights, taxes, liens, charges and other
encumbrances.
(b) Company Representations and
Warranties. The Company represents and warrants to the
Investor, as of the date hereof and as of the Closing Date as
follows:
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(i) Organization and
Qualification. Each of the Company and its Subsidiaries is an
entity duly organized and validly existing and in good standing under the laws
of the jurisdiction in which it is formed, and has the requisite power and
authorization to own its properties and to carry on its business as now being
conducted and as presently proposed to be conducted. Each of the Company and its
Subsidiaries is duly qualified as a foreign entity to do business and is in good
standing in every jurisdiction in which its ownership of property or the nature
of the business conducted by it makes such qualification necessary, except to
the extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect.
(ii) Authorization; Enforcement;
Validity. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and to
amend and restate the Existing Warrants as contemplated hereby. The
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby, including, without
limitation, the amendment and restatement of the Existing Warrants contemplated
hereby, have been duly authorized by the Company's board of directors and no
further filing, consent or authorization is required by the Company, its board
of directors or its stockholders or other governing body. This Agreement has
been duly executed and delivered by the Company, and constitutes the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with its respective terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of applicable creditors' rights and
remedies and except as rights to indemnification and to contribution may be
limited by federal or state securities law.
(iii) Issuance of
Securities. The amendment and restatement of the Existing
Warrants contemplated hereby is duly authorized and upon issuance in accordance
with the terms of the this Agreement, will be validly issued, fully paid and
non-assessable and free from all preemptive or similar rights, taxes, liens,
charges and other encumbrances with respect to the issue thereof.
(iv) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby (including, without limitation, the amendment and
restatement of the Existing Warrants contemplated hereby will not (i) result in
a violation of the Certificate of Incorporation (including, without limitation,
any certificates of designation contained therein) or other organizational
documents of the Company or any of its Subsidiaries, any capital stock of the
Company, or Bylaws, (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 the Company or
any of its Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including, without limitation,
federal and state securities laws and regulations and the rules and regulations
of the NYSE Amex) applicable to the Company or any of its Subsidiaries or by
which any property or asset of the Company or any of its Subsidiaries is bound
or affected except, in the case of clause (ii) or (iii) above, to the extent
such violations that could not reasonably be expected to have a Material Adverse
Effect.
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(v) Consents. The Company
is not required to obtain any consent from, authorization or order of, or make
any filing or registration with any court, Governmental Entity or any regulatory
or self-regulatory agency or any other Person in order for it to execute,
deliver or perform any of its obligations under, or contemplated by, this
Agreement in accordance with the terms hereof. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain at or
prior to the Closing have been obtained or effected on or prior to the Closing
Date. Except as described in Schedule 2(b)(v), the Company is not in violation
of the requirements of the NYSE Amex, and has no knowledge of any facts or
circumstances which could reasonably lead to delisting or suspension of the
Common Stock in the foreseeable future.
(vi) Disclosure. The
Company confirms that neither it nor any other Person acting on its behalf has
provided the Investor or its agents or counsel with any information that
constitutes or could reasonably be expected to constitute material, nonpublic
information. The Company understands and confirms that the Investor
will rely on the foregoing representations in effecting transactions in
securities of the Company. All disclosure provided to the Investor
regarding the Company and, its Subsidiaries, their business and the transactions
contemplated hereby, furnished by or on behalf of the Company is true and
correct and does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading. 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, prospects, 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.
(vii) No
Commissions. No commission or other remuneration is paid or
payable directly or indirectly to any Person for effecting the transactions
contemplated by this Agreement.
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3.
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CERTAIN COVENANTS AND
AGREEMENTS.
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(a) Best
Efforts. Each party shall use its best efforts timely to
satisfy each of the conditions to be satisfied by it as provided in Sections 4
and 5 of this Agreement.
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(b) Disclosure of Transactions
and Other Material Information. On or before 5:30 p.m., New
York City time, on the first Business Day following the date of this Agreement,
the Company shall file a Current Report on Form 8-K describing the terms of the
transactions contemplated by this Agreement in the form required by the 1934 Act
and attaching this Agreement (and all schedules to this Agreement) as exhibits
to such filing (including all attachments, the "8-K Filing"). From
and after the filing of the 8-K Filing with the SEC, the Investor shall not be
in possession of any material, nonpublic information received from the Company,
any of its Subsidiaries or any of its respective officers, directors, employees
or agents, that is not disclosed in the 8-K Filing. The Company shall
not, and shall cause each of its Subsidiaries and its and each of their
respective officers, directors, employees and agents, not to, provide the
Investor with any material, nonpublic information regarding the Company or any
of its Subsidiaries from and after the filing of the 8-K Filing with the SEC
without the express written consent of the Investor. If the Investor
has, or believes it has, received any such material, nonpublic information
regarding the Company or any of its Subsidiaries, it shall provide the Company
with written notice thereof. The Company shall, within two (2)
Trading Days (as defined in the Existing Warrants) of receipt of such notice,
make public disclosure of such material, nonpublic information. In
the event of a breach of the foregoing covenant by the Company, in addition to
any other remedy provided herein or in the Transaction Documents, the Investor
shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material, nonpublic
information without the prior approval by the Company, its Subsidiaries, or any
of its or their respective officers, directors, employees or
agents. The Investor shall not have any liability to the Company, its
Subsidiaries, or any of its or their respective officers, directors, employees,
stockholders or agents for any such disclosure. To the extent that
the Company or any of its or their respective officers, directors, employees,
stockholders or agents deliver any material, non-public information to a Buyer
without such Buyer's consent, the Company hereby covenants and agrees that such
Buyer shall not have any duty of confidentiality with respect to, or a duty not
to trade on the basis of, such material, non-public
information. Subject to the foregoing, neither the Company, its
Subsidiaries nor the Investor shall issue any press releases or any other public
statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of the
Investor, to make any press release or other public disclosure with respect to
such transactions (i) in substantial conformity with the 8-K Filing and
contemporaneously therewith and (ii) as is required by applicable law and
regulations (provided that in the case of clause (i) the Investor shall be
consulted by the Company in connection with any such press release or other
public disclosure prior to its release). Without the prior written
consent of the Investor, neither the Company nor any of its Subsidiaries or
affiliates shall disclose the name of the Investor in any filing, announcement,
release or otherwise.
(c) Prospectus
Supplement. No later than two (2) Trading Days after the date
hereof, the Company shall file a prospectus supplement to the Registration
Statement and the Prospectus substituting the Amended and Restated Warrants for
the Existing Warrants currently covered by the Registration
Statement. Upon exercise of the Amended and Restated Warrants, as
long as either (i) the Registration Statement is then effective or (ii) the
Amended and Restated Warrants are issued pursuant to a "cashless exercise" (as
contemplate in Section 1(d) of each of the Amended and Restated Warrants), the
Company shall issue freely tradable shares of Common Stock without any
restrictions and without any restrictive legends.
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(d) Fees and
Expenses. The Company shall reimburse the Investor for its
legal and due diligence fees and expenses and its legal and due diligence fees
and expenses in connection with the preparation and negotiation of this
Agreement and transactions contemplated thereby, by paying any such amount to
Schulte Roth & Zabel LLP (the "Investor Counsel Expense") by
wire transfer of immediately available funds in accordance with the written
instructions of Schulte Roth & Zabel LLP delivered to the Company on or
prior to the Closing Date. The Investor Counsel Expense shall be paid
by the Company whether or not the transactions contemplated by this Agreement
are consummated. Except as otherwise set forth above, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the amendment and restatement of the Existing Warrants
contemplated hereby.
(e) Surrender of Existing
Warrants. The Investor shall use reasonable best efforts to
surrender the certificates representing the Existing Warrants to the Company
promptly following the Closing.
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4.
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CONDITIONS TO
COMPANY'S OBLIGATIONS
HEREUNDER.
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The
obligations of the Company to the Investor hereunder are subject to the
satisfaction of each of the following conditions, provided that these conditions
are for the Company's sole benefit and may be waived by the Company at any time
in its sole discretion by providing each Investor with prior written notice
thereof:
(a) The
Investor shall have duly executed this Agreement and delivered the same to the
Company.
(b) The
Existing Warrants shall be deemed to have been surrendered by the Investor to
the Company for cancellation.
(c) The
representations and warranties of the Investor shall be true and correct in all
respects as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date which shall be true and correct as of such specified date), and the
Investor shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Investor at or prior to the Closing
Date.
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5.
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CONDITIONS TO
INVESTOR'S OBLIGATIONS
HEREUNDER.
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The
obligations of the Investor hereunder are subject to the satisfaction of each of
the following conditions, provided that these conditions are for the Investor's
sole benefit and may be waived by the Investor at any time in its sole
discretion by providing the Company with prior written notice
thereof:
(a) The
Company shall have duly executed this Agreement and delivered the same to the
Investor.
(b) The
Company shall have delivered the Amended and Restated Warrants to the
Investor.
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(c) The
Company shall have delivered to the Investor a certificate evidencing the
incorporation and good standing (if applicable) of the Company and each of its
Subsidiaries in such corporation's jurisdiction of incorporation issued by the
Secretary of State or other comparable authority of such jurisdiction of
incorporation as of a date within 10 days of the Closing Date.
(d) From
the date hereof to the Closing Date, (i) trading in the Common Stock shall not
have been suspended by the SEC or the NYSE Amex, and, (ii) at any time prior to
the Closing Date, trading in securities generally as reported by Bloomberg L.P.
shall not have been suspended or limited or threatened either (A) in writing by
the SEC or the NYSE Amex or (B) except as described in Schedule 2(b)(v), by
falling below the minimum listing maintenance requirements of the NYSE Amex, or
minimum prices shall not have been established on securities whose trades are
reported by such service, or on the NYSE Amex, nor shall a banking moratorium
have been declared either by the United States or New York State authorities nor
shall there have occurred any material outbreak or escalation of hostilities or
other national or international calamity of such magnitude in its effect on, or
any material adverse change in, any financial market which, in each case, in the
reasonable judgment of the Investor, makes it impracticable or inadvisable to
consummate the transactions contemplated by this Agreement.
(e) The
Company shall have delivered to the Investor a certificate, in the form
reasonably acceptable to the Investor, executed by the Secretary of the Company
and dated as of the Closing Date, as to (i) the resolutions as adopted by the
Company's board of directors approving the transactions contemplated hereby in a
form reasonably acceptable to the Investor, (ii) the Certificate of
Incorporation and (iii) the Bylaws of the Company, each as in effect at the
Closing.
(f) The
representations and warranties of the Company shall be true and correct as of
the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that were made as of a specific date,
which shall be true and correct as of such specific date) and the Company shall
have performed, satisfied and complied in all respects with the covenants,
agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Closing Date. The
Investor shall have received a certificate, executed by the Chief Executive
Officer of the Company, dated as of the Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by the Investor in
the form reasonably acceptable to the Investor.
(g) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the amendment and restatement of the
Existing Warrants.
(h) There
shall have been no Material Adverse Effect with respect to the Company since the
date hereof.
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(i)
The Company shall have delivered to the Investor such
other documents relating to the transactions contemplated by this Agreement as
the Investor or its counsel may reasonably request.
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6.
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TERMINATION.
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In the
event that the Closing does not occur with respect to an Investor on or before
three (3) Business Days from the date hereof due to the Company's or the
Investor's failure to satisfy the conditions set forth in Sections 4 and 5
hereof (and the nonbreaching party's failure to waive such unsatisfied
conditions(s)), the nonbreaching party shall have the option to terminate this
Agreement with respect to such breaching party at the close of business on such
date without liability of any party to any other party. Upon such
termination, the terms hereof shall be null and void and the parties shall
continue to comply with all terms and conditions of the Transaction Documents,
as in effect prior to the execution of this Agreement.
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7.
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MISCELLANEOUS.
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(a) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
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;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
(b) Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(c) Severability. If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
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(d) Governing Law; Jurisdiction;
Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such 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
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(e) No Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
(f) Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(g) No Strict
Construction. 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.
(h) Entire Agreement; Effect on
Prior Agreements; Amendments. Except for the Transaction
Documents (to the extent any such Transaction Document in effect prior to this
Agreement is not amended by this Agreement), this Agreement supersedes all other
prior oral or written agreements between the Investor, the Company, their
affiliates and Persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor the Investor makes any representation,
warranty, covenant or undertaking with respect to such matters. No
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the Investor. No provision hereof
may be waived other than by an instrument in writing signed by the party against
whom enforcement is sought.
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(i)
Notices. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with an overnight courier
service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications
shall be:
If to the
Company:
IsoRay,
Inc.
350 Hills
St., Suite 106
Richland,
Washington 99354
Telephone: (509)
375-1202
Facsimile: (506) 375-3473
Attention: Dwight Babcock, Chairman & CEO
With a
copy (for informational purposes only) to:
Keller Rohrback, P.L.C.
3101 North Central Ave.
Suite 1400
Phoenix, Arizona 85012
Telephone: (602) 230-6361
Facsimile: (602) 248-2822
Attention: Stephen R. Boatwright, Esq.
If to the
Investor, to its address and facsimile number set forth on the Schedule of
Buyers attached to the Existing Securities Purchase Agreement,
with a
copy (for informational purposes only) to:
Schulte
Roth & Zabel LLP
919 Third
Avenue
New York,
New York 10022
Telephone: (212)
756-2000
Facsimile: (212)
593-5955
Attention.: Eleazer
N. Klein
or to
such other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
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(j)
Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns in accordance
with the terms of the Existing Securities Purchase Agreement.
(k) Survival. Unless
this Agreement is terminated under Section 6, the representations and warranties
of the Company and the Investors contained herein and the agreements and
covenants set forth herein shall survive the Closing and the delivery and
exercise of Securities, as applicable. Each Investor shall be
responsible only for its own representations, warranties, agreements and
covenants hereunder.
(l)
Remedies. The
Investor and each holder of the Amended and Restated Warrants shall have all
rights and remedies set forth in the Transaction Documents and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting
a bond or other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by
law. Furthermore, the Company recognizes that in the event that it
fails to perform, observe, or discharge any or all of its obligations under this
Agreement, any remedy at law may prove to be inadequate relief to the
Investor. The Company therefore agrees that the Investor shall be
entitled to seek temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages and without posting a bond or
other security.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
Investor and the Company have caused their respective signature page to this
Consent, Amendment Agreement to be duly executed as of the date first written
above.
| COMPANY: | ||
| ISORAY, INC. | ||
|
By:
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/s/ Dwight Babcock
|
|
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Name:
Dwight Babcock
|
||
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Title: CEO
& Chairman
|
||
IN WITNESS WHEREOF, the
Investor and the Company have caused their respective signature page to this
Amendment Agreement to be duly executed as of the date first written
above.
|
INVESTOR:
|
||
|
HUDSON
BAY MASTER FUND LTD.
|
||
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By:
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Hudson
Bay Capital Management LP, as its
|
|
|
Investment
Manager
|
||
|
By:
|
/s/ Yoav Roth
|
|
|
Name: Yoav
Roth
|
||
|
Title: Authorized
Signatory
|
||
Schedule
2(b)(v)
As of the
quarter ended September 30, 2010, IsoRay fell below the minimum shareholder's
equity requirement of $6 million needed to maintain its listing on the NYSE
AMEX.