Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:O6—cv—OOOO2-GI\/IS Document 11-8 Filed O2/14/2006 Page 1 014

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11’ » ¢~€»=1{ é igjfl i ’»1,1 i Diomed Holdings Completes $10 Million Equity Financing ‘
“ ,VV` ANDOVER, Mass,-{BUSINESS WIRE)--0ct. 3, 2005--Diomed
y//V€Vj;jfg.'”Q,1,1,Q{[;gQ{}, *V ,` ..1.;; Holdings, Inc. (AMEX: DIO ~ News), a leading developer and E
marketer of minimally invasive medical technologies, including its
patented EndoVenous Laser Treatment (EVLT®) for varicose veins,
aa; ,,1i· ml ‘v1» :f·z*i ,l,ls,‘ iiv ’~‘,‘s; ?*5r’?’~i.€l tnday announced that it has completed 3 $10 mllll¤¤ Pfwaté i
NEWS 1 placement of its preferred stock.
i°g’’“ " 1 ’’/’`..s’ i ' _’,` In the $10 million financing transaction, Diomed issued 4 million
EVENT?. » l T shares of its preferred stock ata price of $2.50 per share,
, / . ` exchan eable into an e ual number of shares of its common stock,
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» SEC FILIEGE and warrants to purchase 1.6 million shares of its common stock at
‘ , e an exercise price of $2.50 per share. The $2.50 share price
`4'.’‘ ` V`”' ,’", `T`. ,""/Q ''°l,' i 4''44`` represents a 17% premium over the closing price of Diomed's
· ,11, il]; common stock on September 30, 2005. The preferred shares
_,f?[,,Q,, _i,§2jg7i,1ffQ,L,Q{ff*Q""ijY1iAL1l ',`’ provide for a dividend of 6% per annum for the first 18 months,
1 ,.1. _‘l. v grivivi iivivii, I ‘,,i, *,V’_ *,.’ '’,T rgirprlp i , ipl, y increasing to 10% for the 19th through 24th month, and to 15%
’° thereafter. The dividends will be suspended on a day-to—day basis E
`’,`,4l A5lG4’ 1V `_4' whenever the market price for Diomed's common stock has
V, Llcogpgéhnw pyyg ` exceeded $6.25 per share for the prior 30 trading days, and are {
payable quarterly in cash or in registered common stock, at
T ’ i“’/ A `'l`` * 1 Diomecl's election. The warrants are exercisable for five years. §
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7} isi. > Ti gv: .i*.1 Q; .,i‘ Qi, "We are extremely pleased with the pricing and other terms of the
r · p»p11 p 1 ···1 - 111- pV1— »1 , financing," remarked David B. Swank, Chief Financial Officer of
Diomed Holdings, Inc. "We believe that this transaction
.4.*4, ..l'. ’ .’.1 i —r,i. 1 l · 1 demonstrates the growing confidence of the investment community
in Diomed's business model and future." i
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"This financing enhances our ability to accelerate the growth of our
business and to continue to vigorously protect our intellectual
property rights under US patent Iaw," commented James A. Wylie,
i
http://ir.diomedinc.com/phoenix.zhtml‘?c=130934&p=irol—newsArticle&ID=7694... 02/13/2006

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Diomed's Chief Executive Officer. "We are particularly pleased l”l' 5/L?
the participation of a number of premier medically-oriented ‘
institutional investors in this financing, including both new and
existing investors, which we view as confirmation of the market's
belief in Diomed's solid growth potential."
The Company has agreed to register shares of its common stock
that underlie the preferred shares and the warrants with the
Securities and Exchange Commission for resale within the next 120
days. The Company will file a Current Report on Form 8-K
containing complete details of the transaction.
About Diomed
Diomed develops and commercializes minimally invasive medical
procedures that use its proprietary laser technologies and
disposable products. Diomed focuses on EVLT® laser treatment for
varicose veins, photodynamic therapy (PDT) for use in cancer
treatments, and dental and general surgical applications. The
EVLT® procedure and the Company's related products were cleared
by the United States FDA in January of 2002. Along with lasers and
single-use procedure kits for EVLT®, the Company provides its
customers with state of the art physician training and practice
development support. Additional information is available on the
Company's website, www.evlt.com. EVLT® is a registered
trademark of Diomed, Inc., Andover, MA.
Safe Harbor statements under the Private Securities Litigation
Reform Act of 1995: Statements in this news release looking
forward in time involve risks and uncertainties, including the risks
associated with trends in the products markets, reliance on third
party distributors in various countries outside the United States,
reoccurring orders under OEM contracts, market acceptance risks,
technical development risks and other risk factors. These
statements relate to our future plans, objectives, expectations and
intentions. These statements may be identified by the use of words
such as "may," "will," "should," "potential/' "expects,"
"anticipates," "intends," "plans," "believes" and similar expressions.
These statements are based on our current beliefs, expectations
and assumptions and are subject to a number of risks and
uncertainties. Our actual results could differ materially from those
discussed in these statements. Our Annual Report on Form SEC 10-
KSB (the "Annual Report") contains a discussion of certain of the
risks and uncertainties that affect our business. We refer you to the
"Risk Factors" on pages 22 through 37 of the Annual Report for a
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CasE ]:O6—c5.00092-GIVIS Document 11-8 Filed O2/14/2006 Page 4 gf 1;
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discussion of certain risks, including those relating to our
as a medical device company without a significant operating record °
and with operating losses, our risks relating to our
commercialization of our current and future products and
1
applications and risks relating to our common stock and its market
value. Diomed disclaims any obligation or duty to update or correct
any of its forward-looking statements.

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