Unassociated Document

0001193805-12-000041.txt : 20120112 0001193805-12-000041.hdr.sgml : 20120112 20120112142030 ACCESSION NUMBER: 0001193805-12-000041 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20120112 DATE AS OF CHANGE: 20120112 GROUP MEMBERS: DEERFIELD CAPITAL, L.P. GROUP MEMBERS: DEERFIELD MANAGEMENT COMPANY, L.P. GROUP MEMBERS: DEERFIELD PRIVATE DESIGN FUND, L.P. GROUP MEMBERS: DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. GROUP MEMBERS: DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL, LTD GROUP MEMBERS: DEERFIELD SPECIAL SITUATIONS FUND, L.P. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Flynn James E CENTRAL INDEX KEY: 0001352546 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 780 THIRD AVENUE STREET 2: 37TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Talon Therapeutics, Inc. CENTRAL INDEX KEY: 0001140028 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 320064979 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79910 FILM NUMBER: 12523908 BUSINESS ADDRESS: STREET 1: 2207 BRIDGEPOINTE PARKWAY STREET 2: SUITE 250 CITY: SAN MATEO STATE: CA ZIP: 94404 BUSINESS PHONE: 650-588-6404 MAIL ADDRESS: STREET 1: 2207 BRIDGEPOINTE PARKWAY STREET 2: SUITE 250 CITY: SAN MATEO STATE: CA ZIP: 94404 FORMER COMPANY: FORMER CONFORMED NAME: Hana Biosciences Inc DATE OF NAME CHANGE: 20041006 FORMER COMPANY: FORMER CONFORMED NAME: EMAIL REAL ESTATE COM INC DATE OF NAME CHANGE: 20010504 SC 13D/A 1 e609214_13da-talon.htm Unassociated Document

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

[Rule 13d-101]

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO § 24.13d-1(a) AND AMENDMENT THERETO FILED PURSUANT TO § 240.13D-2(a)

(Amendment No. 8)*

TALON THERAPEUTICS, INC.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

87484H104

(CUSIP Number)

James E. Flynn

Deerfield Capital, L.P.

780 Third Avenue, 37th Floor

New York, New York 10017

(212) 551-1600

With a copy to:

Mark I. Fisher, Esq.

Elliot Press, Esq.

Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022

(212) 940-8800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 9, 2012

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

(Page 1 of 17 Pages)

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 87484H104

Page 2 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Capital, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 13,604,117 Shares (1)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 13,604,117 Shares (1)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,604,117 Shares (1)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 41.18% (2)
14	TYPE OF REPORTING PERSON PN

(1) Comprised of an aggregate of 2,346,202 shares of common stock, warrants to purchase 324,737 shares of common stock, 5,631,845 shares of common stock issuable as of January 9, 2012 upon the conversion of an aggregate of 35,687 shares of Series A-1 Convertible Preferred Stock and 5,301,333 shares of common stock issuable as of January 9, 2012 upon the conversion of an aggregate of 15,904 shares of Series A-2 Convertible Preferred Stock held by Deerfield Special Situations Fund, L.P., Deerfield Private Design Fund, L.P. and Deerfield Private Design International, L.P.

(2) Based on 21,778,812 outstanding shares of common stock of the Company as reported in the Company's Quarterly Report for the quarterly period ended September 30, 2011 filed by the Company on November 14, 2011 with the Securities and Exchange Commission.

SCHEDULE 13D

CUSIP No. 87484H104

Page 3 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Special Situations Fund, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 1,065,293 Shares (3)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 1,065,293 Shares (3)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,065,293 Shares (3)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.73% (4)
14	TYPE OF REPORTING PERSON PN

(3) Comprised of 323,343 shares of common stock, warrants to purchase 21,415 shares of common stock, 371,202 shares of common stock issuable as of January 9, 2012 upon the conversion of 2,353 shares of Series A-1 Convertible Preferred Stock and 349,333 shares of common stock issuable as of January 9, 2012 upon the conversion of 1,048 shares of Series A-2 Convertible Preferred Stock.

(4) See footnote 2 above.

SCHEDULE 13D

CUSIP No. 87484H104

Page 4 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Private Design Fund, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 4,802,435 Shares (5)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 4,802,435 Shares (5)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,802,435 Shares (5)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.61% (6)
14	TYPE OF REPORTING PERSON PN

(5) Comprised of 774,758 shares of common stock, warrants to purchase 116,172 shares of common stock, 2,014,838 shares of common stock issuable as of January 9, 2012 upon the conversion of 12,767 shares of Series A-1 Convertible Preferred Stock and 1,896,667 shares of common stock issuable as of January 9, 2012 upon the conversion of 5,690 shares of Series A-2 Convertible Preferred Stock.

(6) See footnote 2 above.

SCHEDULE 13D

CUSIP No. 87484H104

Page 5 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Private Design International, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 7,736,389 Shares (7)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 7,736,389 Shares (7)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,736,389 Shares (7)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.37% (8)
14	TYPE OF REPORTING PERSON PN

(7) Comprised of 1,248,101 shares of common stock, warrants to purchase 187,150 shares of common stock, 3,245,805 shares of common stock issuable as of January 9, 2012 upon the conversion of 20,567 shares of Series A-1 Convertible Preferred Stock and 3,055,333 shares of common stock issuable as of January 9, 2012 upon the conversion of 9,166 shares of Series A-2 Convertible Preferred Stock.

(8) See footnote 2 above.

SCHEDULE 13D

CUSIP No. 87484H104

Page 6 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Management Company, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 1,965,456 Shares (9)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 1,965,456 Shares (9)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,965,456 Shares (9)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.49% (10)
14	TYPE OF REPORTING PERSON PN

(9) Comprised of 604,950 shares of common stock, warrants to purchase 39,250 shares of common stock, 680,589 shares of common stock issuable as of January 9, 2012 upon the conversion of 4,313 shares of Series A-1 Convertible Preferred Stock and 640,667 shares of common stock issuable as of January 9, 2012 upon the conversion of 1,922 shares of Series A-2 Convertible Preferred Stock held by Deerfield Special Situations Fund International, Limited.

(10) See footnote 2 above.

SCHEDULE 13D

CUSIP No. 87484H104

Page 7 of 17 Pages

1	NAME OF REPORTING PERSONS Deerfield Special Situations Fund International, Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 1,965,456 Shares (11)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 1,965,456 Shares (11)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,965,456 Shares (11)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.49% (12)
14	TYPE OF REPORTING PERSON CO

(11) Comprised of 604,950 shares of common stock, warrants to purchase 39,250 shares of common stock, 680,589 shares of common stock issuable as of January 9, 2012 upon the conversion of 4,313 shares of Series A-1 Convertible Preferred Stock and 640,667 shares of common stock issuable as of January 9, 2012 upon the conversion of 1,922 shares of Series A-2 Convertible Preferred Stock.

(12) See footnote 2 above.

SCHEDULE 13D

CUSIP No. 87484H104

Page 8 of 17 Pages

1	NAME OF REPORTING PERSONS James E. Flynn
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 15,569,573 Shares (13)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 15,569,573 Shares (13)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,569,573 Shares (13)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.26% (14)
14	TYPE OF REPORTING PERSON IN

(13) Comprised of an aggregate of 2,951,152 shares of common stock, warrants to purchase 363,987 shares of common stock, 6,312,434 shares of common stock issuable as of January 9, 2012 upon the conversion of an aggregate of 40,000 shares of Series A-1 Convertible Preferred Stock and 5,942,000 shares of common stock issuable as of January 9, 2012 upon the conversion of an aggregate of 17,826 shares of Series A-2 Convertible Preferred Stock held by Deerfield Special Situations Fund, L.P., Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P. and Deerfield Special Situations Fund International, Limited.

(14) See footnote 2 above.

CUSIP No. 87484H104

The Schedule 13D filed on October 19, 2009 by (i) Deerfield Capital, L.P. (“Deerfield Capital”), (ii) Deerfield Special Situations Fund, L.P. (“Deerfield Special Situations Fund”), (iii) Deerfield Private Design Fund, L.P. (“Deerfield Private Design Fund”), (iv) Deerfield Private Design International, L.P. (“Deerfield Private Design International”), (v) Deerfield Management Company, L.P. (“Deerfield Management”), (vi) Deerfield Special Situations Fund International, Limited (“Deerfield Special Situations International”) and (vii) James E. Flynn, a natural person (“Flynn” and collectively with Deerfield Capital, Deerfield Special Situations Fund, Deerfield Private Design Fund, Deerfield Private Design International, Deerfield Management and Deerfield Special Situations International, the “Reporting Persons”), as amended by Amendment No. 1 filed on June 11, 2010, Amendment No. 2 filed on September 16, 2010, Amendment No. 3 filed on February 4, 2011, Amendment No. 4 filed on May 25, 2011, Amendment No. 5 filed on June 13, 2011, Amendment No. 6 filed on June 24, 2011 and Amendment No. 7 filed on September 7, 2011 with respect to the securities of Talon Therapeutics, Inc. (the "Company") (formerly Hana Biosciences, Inc.) is hereby amended by this Amendment No. 8. Only those items hereby reported in this Amendment No. 8 are amended and all other items remain unchanged. Terms used herein but not otherwise defined herein shall have the meanings ascribed thereto in Amendment No.1 to the Schedule 13D.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Schedule 13D is hereby amended to include the following:

Set forth below is the source and amount of funds and other consideration utilized by Deerfield Special Situations Fund, Deerfield Private Design Fund, Deerfield Private Design International and Deerfield Special Situations International (collectively, the “Deerfield Purchasers”) to acquire the shares of Series A-2 Convertible Preferred Stock of the Company (the “Series A-2 Preferred Stock) reported herein as being held by them.

Deerfield Special Situations Fund (i) utilized available cash assets in the amount of $64,700 to acquire 647 shares of Series A-2 Preferred Stock and (ii) received 401 shares of Series A-2 Preferred Stock and $68.62 in lieu of fractional shares, in satisfaction of accrued interest of $40,168.62 payable by the Company to it under the Facility Agreement, dated October 30, 2009 and amended on June 7, 2010, between the Company and the Deerfield Purchasers (the “Facility Agreement”) for the quarter ended December 31, 2011, which shares are convertible into 349,333 shares of Common Stock as of January 9, 2012. Deerfield Private Design Fund (i) utilized available cash assets in the amount of $351,100 to acquire 3,511 shares of Series A-2 Preferred Stock and (ii) received 2,179 shares of Series A-2 Preferred Stock and $12.08 in lieu of fractional shares, in satisfaction of accrued interest of $217,912.08 payable by the Company to it under the Facility Agreement for the quarter ended December 31, 2011, which shares are convertible into 1,896,667 shares of Common Stock as of January 12, 2012. Deerfield Private Design International (i) utilized available cash assets in the amount of $565,660 to acquire 5,656 shares of Series A-2 Preferred Stock and (ii) received 3,510 shares of Series A-2 Preferred Stock and $49.08 in lieu of fractional shares, in satisfaction of accrued interest of $351,049.08 payable by the Company to it under the Facility Agreement for the quarter ended December 31, 2011, which shares are convertible into 3,055,333 shares of Common Stock as of January 9, 2012. Deerfield Special Situations International (i) utilized available cash assets in the amount of $118,600 to acquire 1,186 shares of Series A-2 Preferred Stock, and (ii) received 736 shares of Series A-2 Preferred Stock and $23.64 in lieu of fractional shares, in satisfaction of accrued interest of $73,623.64 payable under the Facility Agreement by the Company to it for the quarter ended December 31, 2011, which shares are convertible into 640,667 shares of Common Stock as of January 9, 2012. Cash funds for the purchase of the Series A-2 Preferred Stock were derived from general working capital, and includes funds provided by investors in the Deerfield Purchasers.

CUSIP No. 87484H104

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended to include the following:

2012 Investment Agreement

On January 9, 2012, the Company entered into an Investment Agreement (the “2012 Investment Agreement”) with Warburg Pincus Private Equity X, L.P. and Warburg Pincus Partners, L.P. (together, the “Warburg Purchasers”) and the Deerfield Purchasers (together with the Warburg Purchasers, the “Purchasers”). Pursuant to the terms of the 2012 Investment Agreement, on January 9, 2012, (i) the Warburg Purchasers purchased 99,000 shares of Series A-2 Preferred Stock for an aggregate purchase price of $9,900,000 and (ii) the Deerfield Purchasers purchased 11,000 shares of Series A-2 Preferred Stock for an aggregate purchase price of $1,100,000. The stated value of each share of Series A-2 Preferred Stock is $100. The terms of the Series A-2 Preferred Stock are set forth in the Certificate of Amendment of Corrected Certificate of Designations of Series A-2 Convertible Preferred Stock of the Company, setting forth the designations, preferences, limitations and relative rights of the Series A-2 Preferred Stock (as amended, the “Series A-2 Certificate”).

In addition to the purchase and sale of the Series A-2 Preferred Stock as described above, the 2012 Investment Agreement provides that prior to one year following the receipt of notice from the Company that the Company has received written marketing approval in the United States (which for the purposes of clarity shall include “accelerated approval”) from the U.S. Food and Drug Administration for a New Drug Application submitted for certain of the Company’s products (the “Marketing Approval Date”), the Warburg Purchasers shall have the right to purchase up to 600,000 shares of the Company’s Series A-3 Convertible Preferred Stock (the “Series A-3 Preferred Stock”), in one or more separate transactions at a price per share of $100. The stated value of each shares of Series A-3 Preferred Stock is $100. The Series A-3 Preferred Stock has designations, preferences, limitations and relative rights substantially similar to the Series A-2 Preferred Stock, except that each share of Series A-3 Preferred Stock is convertible into such number of shares of Common Stock of the Company as is equal to accreted value of such share of Series A-3 Preferred Stock divided by a conversion price of $0.35 (subject to adjustment pursuant to the terms of the Certificate of Designation of Series A-3 Convertible Preferred Stock of the Company, setting forth the designations, preferences, limitations and relative rights of the Series A-3 Preferred Stock (the “Series A-3 Certificate”)). Pursuant to the terms of the Series A-3 Certificate, prior to the approval by the stockholders of the Company of an amendment to the amended and restated certificate of incorporation of the Company to increase the authorized numbers of shares of Common Stock (the “Stockholder Approval”), the number of shares of Common Stock issuable upon conversion of the Series A-3 Preferred Stock is subject to the limit set forth in the Series A-3 Certificate.

CUSIP No. 87484H104

To the extent that the Warburg Purchasers elect to exercise their right to purchase shares of Series A-3 Preferred Stock, the Deerfield Purchasers have the right, but not the obligation, to purchase 10% (the “Participation Rights”) of such additional Series A-3 Preferred Stock that would have been purchased by the Warburg Purchasers. If the Deerfield Purchasers exercise their Participation Rights, those rights must be exercised in full. If the Deerfield Purchasers fail to exercise any of their Participation Rights, then those Participation Rights will terminate.

The 2012 Investment Agreement provides that the Deerfield Purchasers have the right to designate one individual to serve on the board of directors of the Company. The right to designate a director will terminate if the Deerfield Purchasers fail to exercise their full Participation Rights or if the Deerfield Purchasers collectively do not beneficially own at least 10% of the Common Stock of the Company as determined under Section 13(d) of the Exchange Act and the rules and regulations thereunder, provided, however, that in no event will this right terminate earlier than the second business day following the date of which shares of Series A-2 Preferred Stock are delivered to the Deerfield Purchasers for interest payable for the quarter ended September 30, 2012 under the Amendment to Facility Agreement referred to below. The initial Deerfield Designee is Howard Furst, M.D., who is currently a Board member.

Amendment No. 1 to Investment Agreement

On January 9, 2012, in connection with entering into the 2012 Investment Agreement, the Company, the Warburg Purchasers and the Deerfield Purchasers entered into an agreement (“Amendment No. 1 to Investment Agreement”) amending the terms of a June 7, 2010 Investment Agreement between the parties to, among other things, acknowledge that no further shares of preferred stock were issuable thereunder.

Voting Agreement

On January 9, 2012, in connection with consummation of the transactions contemplated under the 2012 Investment Agreement, the Warburg Purchasers and the Deerfield Purchasers entered into a Voting Agreement (the "Voting Agreement"). The Voting Agreement provides that each Deerfield Purchaser shall vote (or cause to be voted), for so long as the Voting Agreement remains in effect, all shares of Common Stock (subject to certain exceptions) and Series A-1 Convertible Preferred Stock of the Company beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by such Deerfield Purchaser (together with such additional shares as become beneficially owned by such Deerfield Purchaser, whether upon the exercise of options, warrants, conversion of convertible securities or otherwise, and any other voting securities of the Company (whether acquired theretofore or thereafter)) (i) in favor of (a) the Stockholder Approval and the transactions contemplated by the 2012 Investment Agreement and (b) any other matters submitted to the stockholders of the Company in furtherance of the transactions contemplated by the 2012 Investment Agreement, and (ii) against any action or agreement that would impair the ability of the Company to obtain the Stockholder Approval or otherwise issue certain securities as contemplated by, and pursuant to, the 2012 Investment Agreement, or that would otherwise be inconsistent with, prevent, impede or delay the consummation of the transactions contemplated by the 2012 Investment Agreement. In addition, to the extent that any such actions are taken by the written consent of stockholders, each Deerfield Purchaser agreed to provide consent or withhold consent, as the case may be, in a manner consistent with the aforementioned provisions. The Voting Agreement shall terminate upon the earlier to occur of (i) the receipt of Stockholder Approval or (ii) July 9, 2012.

CUSIP No. 87484H104

Pursuant to the terms of the Voting Agreement, the Deerfield Purchasers also agreed not to transfer or sell any shares of Series A Preferred Stock or Common Stock (subject to certain exceptions) for so long as the Voting Agreement is in effect.

Amendment to Facility Agreement

In connection with entering into the Investment Agreement, on January 9, 2012, the Company and the Deerfield Purchasers entered into a Second Amendment to the Facility Agreement (the "Amendment to Facility Agreement"). Among other items, pursuant to the Amendment to Facility Agreement, the Company will satisfy its obligation under the Facility Agreement to make quarterly interest payments for the quarters ended December 31, 2011, March 31, 2012, June 30, 2012 and September 30, 2012, by issuing a whole number of shares of Series A-2 Preferred Stock determined by dividing the amount of the interest payments payable to each Deerfield Purchaser for each quarterly period by $100. On January 9, 2012, in accordance with the terms of the Facility Amendment, the Company satisfied its interest payment obligation in the aggregate amount of $682,753.42 for the quarter ended December 31, 2011, by issuing an aggregate of 6,826 shares of Series A-2 Preferred Stock to the Deerfield Purchasers and paying cash in lieu of fractional shares in the aggregate amount of $153.42.

The summary contained herein of the 2012 Investment Agreement, Series A-2 Certificate, Series A-3 Certificate, Voting Agreement, Amendment No. 1 to Investment Agreement and the Amendment to Facility Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of such agreements and certificates, copies of which are either filed as Exhibits or incorporated by reference as Exhibits thereto, and all of which are incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

Items 5(a), 5(b) and 5(c) of the Schedule 13D are amended and restated to read as follows:

All of the computations and share amounts used here do not give effect to any accretion of shares Series A-1 Preferred Stock or Series A-2 Preferred Stock after January 9, 2012.

(a)

(1)

Reporting Persons

Number of shares: 15,569,573 (13)

Percentage of shares: 45.26% (2)

(2)

Deerfield Capital

Number of shares: 13,604,117 (1)

Percentage of shares: 41.18% (2)

(3)

Deerfield Special Situations Fund

Number of shares: 1,065,293 (3)

Percentage of shares: 4.73% (2)

CUSIP No. 87484H104

(4)

Deerfield Private Design Fund

Number of shares: 4,802,435 (5)

Percentage of shares: 18.61% (2)

(5)

Deerfield Private Design International

Number of shares: 7,736,389 (7)

Percentage of shares: 27.37% (2)

(6)

Deerfield Management

Number of shares: 1,965,456 (9)

Percentage of shares: 8.49% (2)

(7)

Deerfield Special Situations International

Number of shares: 1,965,456 (11)

Percentage of shares: 8.49% (2)

(8)

Flynn

Number of shares: 15,569,573 (13)

Percentage of shares: 45.26% (2)

(b)

(1)

Deerfield Capital

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 13,604,117 shares (1)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 13,604,117 shares (1)

(2)

Deerfield Special Situations Fund

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 1,065,293 shares (3)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 1,065,293 shares (3)

(3)

Deerfield Private Design Fund

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 4,802,435 shares (5)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 4,802,435 shares (5)

CUSIP No. 87484H104

(4)

Deerfield Private Design International

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 7,736,389 shares (7)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 7,736,389 shares (7)

(5)

Deerfield Management

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 1,965,456 shares (9)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 1,965,456 shares (9)

(6)

Deerfield Special Situations International

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 1,965,456 shares (11)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 1,965,456 shares (11)

(7)

Flynn

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 15,569,573 shares (13)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 15,569,573 shares (13)

Flynn is the sole member of the general partner of each of Deerfield Capital and Deerfield Management. Deerfield Capital is the general partner of Deerfield Special Situations Fund, Deerfield Private Design Fund and Deerfield Private Design International. Deerfield Management is the investment manager of Deerfield Special Situations International.

(c) On January 9, 2012, Deerfield Special Situations Fund acquired 1,048 shares of Series A-2 Preferred Stock, Deerfield Private Design Fund acquired 5,690 shares of Series A-2 Preferred Stock, Deerfield Private Design International acquired 9,166 shares of Series A-2 Preferred Stock and Deerfield Special Situations International acquired 1,922 shares of Series A-2 Preferred Stock pursuant to the terms of the 2012 Investment Agreement and the Amendment to Facility Agreement Amendment. Shares of Series A-2 Preferred Stock are convertible into Common Stock.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended to include the following:

The responses set forth in Item 4 of this Amendment No. 8 are hereby incorporated by reference.

CUSIP No. 87484H104

Item 7. Material to be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended to include the following:

Exhibit 99.18

2012 Investment Agreement (incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Company on January 10, 2012).

Exhibit 99.19

Series A-2 Certificate (incorporated herein by reference to Exhibit 3.2 of the Current Report on Form 8-K filed by the Company on January 10, 2012).

Exhibit 99.20

Series A-3 Certificate (incorporated herein by reference to Exhibit 3.3 of the Current Report on Form 8-K filed by the Company on January 10, 2012).

Exhibit 99.21

Voting Agreement*

Exhibit 99.22

Amendment No. 1 to Investment Agreement (incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by the Company on January 10, 2012).

Exhibit 99.23

Second Amendment to Facility Agreement (incorporated herein by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by the Company on January 10, 2012).

*Filed herewith.

CUSIP No. 87484H104

SIGNATURE

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: January 12, 2012

	DEERFIELD CAPITAL, L.P.

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

	DEERFIELD SPECIAL SITUATIONS FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

	DEERFIELD PRIVATE DESIGN FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

	DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

CUSIP No. 87484H104

	DEERFIELD MANAGEMENT COMPANY, L.P.

	By:	Flynn Management LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

	DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL, LIMITED

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Attorney-in-Fact*

	JAMES E. FLYNN

	/s/ Darren Levine
	Darren Levine, Attorney-in-Fact*

*Power of Attorney previously filed as Exhibit 99.3 to a Schedule 13D/A with regard to Hana Biosciences, Inc. (now known as Talon Therapeutics, Inc.) filed with the Securities and Exchange Commission on June 11, 2010 by Deerfield Capital L.P.; Deerfield Management Company, L.P.; Deerfield Special Situations Fund, L.P.; Deerfield Special Situations Fund International, Limited; Deerfield Private Design Fund, L.P.; Deerfield Private Design International, L.P. and James E. Flynn.

EX-99.21 2 e609214_ex99-21.htm Unassociated Document

EXECUTION VERSION

VOTING AGREEMENT

This Voting Agreement (this “Agreement”) is dated as of January 9, 2012, among Warburg Pincus Private Equity X, L.P., a Delaware limited partnership (“Warburg Pincus”), Deerfield Private Design Fund, L.P., a Delaware limited partnership (“Deerfield Private Design”), Deerfield Private Design International, L.P., a British Virgin Islands limited partnership (“Deerfield Private Design International”), Deerfield Special Situations Fund, L.P., a Delaware limited partnership (“Deerfield Special Situations”), and Deerfield Special Situations Fund International Limited, a British Virgin Islands exempt company (“Deerfield Special Situations International”, and together with Deerfield Private Design, Deerfield Private Design International and Deerfield Special Situations, each a “Stockholder” and collectively the “Stockholders”).

W I T N E S S E T H:

WHEREAS, concurrently with the execution of this Agreement, Talon Therapeutics, Inc., a Delaware corporation (the “Company”) has entered into an Investment Agreement, dated as of the date hereof (the “Investment Agreement”), with the Purchasers which provides, among other things, for the issuance of Securities to the Purchasers, upon the terms and subject to the conditions set forth therein (capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Investment Agreement); and

WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number of shares of Company Common Stock, Series A-1 Convertible Preferred Stock and warrants to purchase shares of Company Common Stock (the “Company Warrants”) set forth, and in the manner reflected, on Attachment A hereto (together with such additional shares as become beneficially owned by the Stockholders, whether upon the exercise of options, warrants, conversion of convertible securities or otherwise, and any other voting securities of the Company (whether acquired heretofore or hereafter) but not including up to 2,723,091 shares of Company Common Stock that are subject to a trading plan established pursuant to Rule 10b5-1 under the Exchange Act prior to the date hereof, the “Owned Shares”); and

WHEREAS, as a condition to Warburg Pincus’ willingness to enter into the Investment Agreement, Warburg Pincus has required that each Stockholder agree, and each Stockholder has agreed, (i) to vote all of such Stockholder’s Owned Shares in favor of (a) the Stockholder Proposal and the transactions contemplated by the Investment Agreement and (b) any other matters submitted to the stockholders of the Company in furtherance of the transactions contemplated by the Investment Agreement and (ii) to take the other actions described herein; and

WHEREAS, each Stockholder desires to express its support for the Stockholder Proposal and the transactions contemplated by the Investment Agreement.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration given to each party hereto, the receipt of which is hereby acknowledged, the parties agree as follows:

1. Agreement to Vote.

1.1 Agreement to Vote. Each Stockholder hereby agrees that, during the time this Agreement is in effect, at any meeting of the stockholders of the Company, however called, or any adjournment or postponement thereof, such Stockholder shall be present (in person or by proxy) and vote (or cause to be voted) all of its Owned Shares (a) in favor of approval of (1) the Stockholder Proposal and the transactions contemplated by the Investment Agreement, and (2) any other matter that is required to facilitate the transactions contemplated by the Investment Agreement; and (b) against any action or agreement that would impair the ability of the Company to obtain the Stockholder Approval or otherwise issue the Securities pursuant to the Investment Agreement, or that would otherwise be inconsistent with, prevent, impede or delay the consummation of the transactions contemplated by the Investment Agreement. In addition, to the extent that any such actions are taken by the written consent of stockholders, the Stockholder shall provide consent or withhold consent, as the case may be, in a manner consistent with this Section 1.1.

1.2 No Exercise of Company Warrants. Notwithstanding the foregoing, nothing in this Agreement shall require a Stockholder to exercise any Company Warrant or authorize Warburg Pincus to exercise any Company Warrant beneficially owned by a Stockholder.

2. Representations and Warranties of Stockholders. Each Stockholder hereby represents and warrants to Warburg Pincus as follows:

2.1 Due Organization. Such Stockholder, if a corporation or other entity, has been duly organized, is validly existing and is in good standing under the laws of the state of its formation or organization.

2.2 Power; Due Authorization; Binding Agreement. Such Stockholder has full legal capacity, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of such Stockholder, and no other proceedings on the part of such Stockholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Stockholder and constitutes a valid and binding agreement of such Stockholder, enforceable against Stockholder in accordance with its terms.

2.3 Ownership of Shares. On the date hereof, the Owned Shares set forth opposite such Stockholder’s name on Attachment A hereto are owned beneficially by such Stockholder in the manner reflected thereon and include all of the shares of capital stock of the Company owned beneficially by such Stockholder, free and clear of any claims, liens, encumbrances and security interests. As of the date hereof such Stockholder has, and at any stockholder meeting of the Company in connection with the Stockholder Proposal, such Stockholder will have (except as otherwise permitted by this Agreement), sole voting power (to the extent such securities have voting power) and sole dispositive power with respect to all of the Owned Shares.

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2.4 No Conflicts. The execution and delivery of this Agreement by such Stockholder does not, and the performance of the terms of this Agreement by such Stockholder will not, (a) require Stockholder to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign (other than filings required under Sections 13(d) and 16 of the Exchange Act), (b) require the consent or approval of any other person pursuant to any agreement, obligation or instrument binding on Stockholder or its properties and assets, (c) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Stockholder or pursuant to which any of its properties or assets are bound or (d) violate any other agreement to which Stockholder is a party including, without limitation, any voting agreement, stockholders agreement, irrevocable proxy or voting trust. The Owned Shares are not, with respect to the voting or transfer thereof, subject to any other agreement, including any voting agreement, stockholders agreement, irrevocable proxy or voting trust.

2.5 Acknowledgment. Such Stockholder understands and acknowledges that Warburg Pincus is entering into the Investment Agreement in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.

3. Representations and Warranties of Warburg Pincus. Warburg Pincus hereby represents and warrants to the Stockholders as follows:

3.1 Due Organization. Warburg Pincus is a limited partnership, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

3.2 Power; Due Authorization; Binding Agreement. Warburg Pincus has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Warburg Pincus of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Warburg Pincus, and no other proceedings on the part of Warburg Pincus are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Warburg Pincus and constitutes a valid and binding agreement of Warburg Pincus.

3.3 No Conflicts. The execution and delivery of this Agreement by Warburg Pincus does not, and the performance of the terms of this Agreement by Warburg Pincus will not, (a) require Warburg Pincus to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign (other than filings required under Sections 13(d) and 16 of the Exchange Act), (b) require the consent or approval of any other person pursuant to any agreement, obligation or instrument binding on Warburg Pincus or its properties and assets, (c) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Warburg Pincus or pursuant to which any of its assets are bound or (d) violate any other material agreement to which Warburg Pincus is a party.

4. Certain Covenants of the Stockholders. Each Stockholder hereby covenants and agrees with Warburg Pincus as follows:

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4.1 Restriction on Transfer, Proxies and Non-Interference. Each Stockholder hereby agrees, while this Agreement is in effect, at any time prior to the date of termination of this Agreement, not to (a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the voting rights of, any of the Owned Shares (any such action, a “Transfer”), (b) grant any proxies or powers of attorney, deposit any Owned Shares into a voting trust or enter into a voting agreement with respect to any Owned Shares, (c) take any action that would cause any representation or warranty of such Stockholder contained herein to become untrue or incorrect or have the effect of preventing or disabling Stockholder from performing its obligations under this Agreement, or (d) commit or agree to take any of the foregoing actions. Any action taken in violation of the foregoing sentence shall be null and void and each Stockholder agrees that any such prohibited action may and should be enjoined. If any involuntary Transfer of any of the Owned Shares shall occur (including, but not limited to, a sale by a Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Owned Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement.

4.2 Additional Shares. Each Stockholder hereby agrees, while this Agreement is in effect, to promptly notify Warburg Pincus of any new shares of capital stock or voting securities of the Company acquired by Stockholder, if any, after the date hereof. Any such shares and voting securities shall be subject to the terms of this Agreement as though owned by such Stockholder on the date hereof.

4.3 No Limitations on Actions. Each Stockholder signs this Agreement solely in its capacity as the beneficial owner of the Owned Shares and this Agreement shall not limit or otherwise affect the actions of the Stockholder or any affiliate, employee or designee of the Stockholder or any of its affiliates in its capacity, if applicable, as an officer or director of the Company.

4.4 Further Assurances. From time to time, at the request of Warburg Pincus and without further consideration, each Stockholder shall execute and deliver such additional documents and take all such further action as may be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement.

5. Stop Transfer Order. In furtherance of this Agreement, and concurrently herewith, each Stockholder shall and hereby does authorize the Company or the Company’s counsel to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Owned Shares. At the request of Warburg Pincus, each Stockholder shall cause to be provided to Warburg Pincus evidence of such stop transfer order.

6. Miscellaneous.

6.1 Termination of this Agreement. This Agreement shall terminate upon the earlier to occur of (i) receipt by the Company of the Stockholder Approval or (ii) the Stockholder Approval Outside Date.

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6.2 Effect of Termination. In the event of termination of this Agreement pursuant to Section 6.1, this Agreement shall become void and of no effect with no liability on the part of any party hereto; provided, however, no such termination shall relieve any party hereto from any liability for any breach of this Agreement occurring prior to such termination.

6.3 Non-Survival. The representations and warranties made herein shall not survive the termination of this Agreement.

6.4 Entire Agreement; Assignment. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall not be assigned by operation of law or otherwise and shall be binding upon and inure solely to the benefit of each party hereto.

6.5 Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

6.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by facsimile, in each case to the intended recipient as set forth below:

If to the Stockholders:

Deerfield Management Company, L.P. Series C

780 Third Avenue, 37th Floor

New York, NY 10017

Attn.: James E. Flynn

Facsimile: (212) 599-3075

with a copy to (which shall not constitute notice):

Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022-2585

Attn.: Robert I. Fisher

Facsimile: (212) 894-5827

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If to Warburg Pincus:

c/o Warburg Pincus LLC

450 Lexington Avenue

New York, New York 10017

Attn.: Jonathan Leff

Facsimile: (212) 878-9361

with a copy to (which shall not constitute notice):

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

Attn.: Steven J. Gartner, Esq./Robert T. Langdon, Esq.

Facsimile: (212) 728-8111

Any party to this Agreement may give any notice or other communication hereunder using any other means (including personal delivery, messenger service, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended. Any party to this Agreement may change the address to which notices and other communications hereunder are to be delivered by giving the other parties to this Agreement notice in the manner herein set forth.

6.7 Governing Law; Venue.

(a) This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdictions other than those of the State of Delaware.

(b) Each of the parties to this Agreement (a) consents to submit itself to the personal jurisdiction of any state or federal court sitting in Wilmington, Delaware in any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party hereto may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 6.6.

(c) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.

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6.8 Specific Performance. Each Stockholder acknowledges and agrees that irreparable damage would occur to Warburg Pincus in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached by such Stockholder, for which money damages would not provide an adequate remedy. Therefore, each Stockholder agrees that, in the event of any breach or threatened breach by such Stockholder of any covenant or obligation contained in this Agreement, Warburg Pincus shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation, (b) an injunction restraining such breach or threatened breach, and (c) other equitable relief to enforce each and every provision hereof. Each Stockholder further agrees that neither Warburg Pincus nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.8, and each Stockholder irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

6.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile transmission.

6.10 Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

6.11 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

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6.12 Disclosure. Each Stockholder hereby authorizes (A) the Company to publish and disclose in the Proxy Statement (including all documents and schedules filed with the SEC) and in any press release, its identity and ownership of the Owned Shares and the nature of its commitments, arrangements and understandings under this Agreement and (B) Warburg Pincus to publish and disclose in its filings required under Sections 13(d) and 16 of the Exchange Act, its identity and ownership of the Owned Shares and the nature of its commitments, arrangements and understandings under this Agreement.

6.13 Effectiveness of Agreement. The obligations of the Stockholders in this Agreement shall not be effective or binding upon the Stockholders until after such time as the Investment Agreement is executed and delivered by Warburg Pincus.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be duly executed as of the day and year first above written.

	WARBURG PINCUS PRIVATE EQUITY X, L.P. By: Warburg Pincus X L.P., its General Partner By: Warburg Pincus X LLC, its General Partner By: Warburg Pincus Partners LLC, its Sole Member By: Warburg Pincus & Co., its Managing Member


	By:	/s/ Jonathan Leff
		Name: Jonathan Leff
		Title: Partner

[Signature Page to Voting Agreement]

STOCKHOLDERS

	DEERFIELD PRIVATE DESIGN FUND, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ Jeffrey Kaplan
	Name:	Jeffrey Kaplan
	Title:	Authorized Signatory

	DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ Jeffrey Kaplan
	Name:	Jeffrey Kaplan
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ Jeffrey Kaplan
	Name:	Jeffrey Kaplan
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED


	By:	/s/ Jeffrey Kaplan
	Name:	Jeffrey Kaplan
	Title:	Authorized Signatory

[Signature Page to Voting Agreement]

ATTACHMENT A

Details of Ownership

Stockholder	Number of Shares of Company Common Stock	Numbers of Shares of Company Common Stock Subject to Company Warrants	Series A-1 Convertible Preferred Stock
Deerfield Private Design Fund, L.P.	62,398	116,172	14,796
Deerfield Private Design International, L.P.	100,519	187,149	23,836
Deerfield Special Situations Fund, L.P.	15,103	21,414	2,726
Deerfield Special Situations Fund International Limited	50,041	39,249	4,998