EXHIBIT 10.37
FIRST AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT (the
"Amendment"), dated as of March 30, 2001, by and between UNIGENE LABORATORIES,
INC., a Delaware corporation (the "Company"), and FUSION CAPITAL FUND II, LLC
(together with its permitted assigns, the "Buyer"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings given them in
the Common Stock Purchase Agreement.
WHEREAS, the parties hereto are parties to a Common Stock Purchase
Agreement dated as of December 18, 2000 (the "Common Stock Purchase Agreement");
WHEREAS, pursuant to the Common Stock Purchase Agreement, the Buyer has
agreed to purchase, and the Company has agreed to sell up to $21,000,000 of the
Common Stock all in accordance with the terms and conditions of the Common Stock
Purchase Agreement;
WHEREAS, pursuant to the Common Stock Purchase Agreement the Buyer has
the right to terminate the Common Stock Purchase Agreement on March 31, 2001 and
the Company and the Buyer desire to extend such date as provided herein;
WHEREAS, pursuant to the Common Stock Purchase Agreement the Company is
required to issue certain Commitment Shares to the Buyer and the Company and the
Buyer desire to reduce the amount of Commitment Shares otherwise owed to the
Buyer and in lieu thereof issue to the Buyer a warrant to purchase shares of
Common Stock in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the agreements, covenants and
considerations contained herein, the parties hereto agree as follows:
1. Amendments.
a. Section 2 of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant and the
Warrant Shares" immediately after the words "Commitment Shares"
in each instance the words "Commitment Shares" appear in Section
2 of the Common Stock Purchase Agreement.
b. Section 2(a) of the Common Stock Purchase Agreement is hereby
amended and restated by deleting the reference "Section 7(b)" in
the second line of such Section and replacing it with "Section
4(f)".
c. Section 3(b) of the Common Stock Purchase Agreement is hereby
amended and restated: (i) by adding the words "the Warrant," to
the second line of such Section immediately after the words "its
obligations under this Agreement"; (ii) by adding the words "and
the Warrant and Warrant Shares" to the sixth and ninth lines of
such Section immediately after the words "the Commitment Shares";
(iii) by adding the words "and Warrant Shares" to the ninth line
of such Section immediately after the words "the Purchase
Shares"; and (iv) by adding the words "and the Warrant" to the
tenth line of such Section, immediately after the words "issuable
under this Agreement".
d. Clause (vi) of Section 3(c) is hereby amended and restated in its
entirety as follows:
"(vi)there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the
issuance of the Commitment Shares or the Purchase Shares as
described in this Agreement or the Warrant or Warrant Shares and"
e. Section 3(d) of the Common Stock Purchase Agreement is hereby
amended and restated by: (i) adding the clause "The Warrant has
been duly authorized and" to the beginning of such Section, (ii)
adding the words "and the Warrant Shares" immediately after the
words "Commitment Shares" in the first line of such Section and
(iii) adding the words "and thereof" immediately after the word
"hereof" in the second line of such Section.
f. Section 3(j) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant, the
Warrant Shares" immediately after the words "Commitment Shares"
to the fourth line of such Section.
g. Section 3(k) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant, the
Warrant Shares" immediately after the words "Commitment Shares"
to the fourth, fifth, ninth and tenth lines of such Section.
h. Section 3(t) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant, the
Warrant Shares" immediately after the words "Commitment Shares"
to the seventh and eighth lines of such Section.
i. The first sentence of Section 4(a) of the Common Stock Purchase
Agreement is hereby amended and restated as follows:
"The Company shall within thirty (30) Trading Days from the date
hereof file a new registration statement covering the sale of at
least 6,000,000 Purchase Shares, 2,000,000 Commitment Shares and
1,000,000 Warrant Shares.
j. Section 4(b) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words ", the Warrant, the
Warrant Shares" immediately after the words the "Commitment
Shares" to each of the third and sixth lines of such Section.
k. Section 4(d) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "Warrant Shares"
immediately after the words "Purchase Shares" in the first line
of such Section.
l. Section 4(f) of the Common Stock Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(f) Issuance of Warrant and Commitment Shares/ Limitation on
sales of Commitment Shares. The Company agrees to issue to the
Buyer on March 30, 2001, (i) 2,000,000 shares of Common Stock
(the "Commitment Shares") and (ii) a warrant (the "Warrant") to
purchase 1,000,000 shares of Common Stock (the "Warrant Shares").
The Warrant shall have an exercise price of $.50 per share, and
shall be exercisable for five (5) years from the Commencement
Date. The Commitment Shares shall be issued in certificated form
and shall bear the restrictive legend set forth in Exhibit G
hereto. The Buyer agrees that the Buyer shall not transfer or
sell the Commitment Shares or Warrant Shares until 720 days from
the date of the Agreement or until this Agreement has been
terminated, provided, however, that such restrictions shall not
apply: (i) to transfers to or among affiliates (as defined in the
1934 Act), (ii) to a pledge in connection with a bona fide loan
(but not the foreclosure thereon) or a deposit to a margin
account, or (iii) if an Event of Default has occurred, or any
event which, after notice and/or lapse of time, would become an
Event of Default, including any failure by the Company to timely
issue Purchase Shares under this Agreement. Notwithstanding the
forgoing, the Buyer may transfer Commitment Shares or Warrant
Shares to a third party in order to settle a sale made by the
Buyer where the Buyer reasonably expects the Company to deliver
Purchase Shares to the Buyer under this Agreement so long as the
Buyer maintains ownership of the same overall number of shares of
Common Stock by "replacing" the Commitment Shares or Warrant
Shares so transferred with Purchase Shares when the Purchase
Shares are actually issued by the Company to the Buyer.
m. Section 5 of the Common Stock Purchase Agreement is hereby
amended and restated in its entirety as follows:
"5. TRANSFER AGENT INSTRUCTIONS.
On the Commencement, the Company shall cause any restrictive
legend on the Commitment Shares to be removed, and all of the
Commitment Shares issued to the Buyer and the Purchase Shares to
be issued under this Agreement and the Warrant Shares issuable
under the Warrant shall be issued without any restrictive legend
and shall be issued by the Company's transfer agent via The DTC
Fast Automated Securities Transfer Program, by crediting the
appropriate number of shares of Common Stock to which the Buyer
shall be entitled to the Buyer's or its designee's balance
account with The DTC through The DTC DWAC system, or, if the
Transfer Agent is not participating in The DTC Fast Automated
Securities Transfer Program and DWAC system, issue and surrender
to the Buyer, a certificate, registered in the name of the Buyer
or its designee, for the number of shares of Common Stock to
which the Buyer shall be entitled. The Company shall issue
irrevocable instructions to its transfer agent, and any
subsequent transfer agent, to issue Purchase Shares in the name
of the Buyer or its respective nominee(s), for the Purchase
Shares (the "Irrevocable Transfer Agent Instructions"). The
Company warrants to the Buyer that no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this
Section 5, will be given by the Company to its transfer agent
with respect to the Purchase Shares and that the Commitment
Shares, Warrant Shares and the Purchase Shares shall otherwise be
freely transferable on the books and records of the Company as
and to the extent provided in this Agreement and the Registration
Rights Agreement subject to the provisions of Section 4(f) in the
case of the Commitment Shares.
n. Section 6(b) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant Shares" to
the second line of such Section immediately after the words "the
Commitment Shares".
o. Section 7(b) of the Common Stock Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(b) The Company shall have removed any restrictive legend from the
Commitment Shares."
p. Section 7(c) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the words "the Warrant Shares" to
the third line of such Section immediately after the words
"Purchase Shares".
q. Section 7(l) of the Common Stock Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(l) A registration statement covering the sale of all of the
Commitment Shares, the Warrant Shares and at least 6,000,000
Purchase Shares shall have been declared effective under the 1933
Act by the SEC and no stop order with respect to the registration
statement shall be pending or threatened by the SEC. The Company
shall have prepared and delivered to the Buyer a final form of
Prospectus to be used by the Buyer in connection with any sales
of any Commitment Shares, Warrant Shares or any Purchase Shares.
The Company shall have made all filings under all applicable
federal and state securities laws necessary to consummate the
issuance of the Commitment Shares, Warrant Shares and the
Purchase Shares pursuant to this Agreement in compliance with
such laws."
r. Section 9(d) of the Common Stock Purchase Agreement is hereby
amended and restated by adding the clause "or Warrant Shares to
the Buyer within five (5) Trading Days after delivery of the
applicable notice" to the end of such Section.
s. Sections 11(k)(ii) and 11(k)(iii) of the Common Stock Purchase
Agreement are hereby amended and restated in their entirety as
follows:
"(ii)In the event that the Commencement shall not have occurred,
the Company shall have the option to terminate this Agreement for
any reason or for no reason without liability of any party to any
other party.
(iii) In the event that the Commencement shall not have occurred
on or before June 30, 2001, due to the failure to satisfy the
conditions set forth in Sections 6 and 7 above with respect to
the Commencement (and the nonbreaching party's failure to waive
such unsatisfied condition(s)), the nonbreaching party shall have
the option to terminate this Agreement at the close of business
on such date or thereafter without liability of any party to any
other party."
t. The term "Transaction Documents" shall be deemed to include this
Amendment and the Warrant for all purposes under the Common Stock
Purchase Agreement.
u. Exhibit F and Exhibit G to the Common Stock Purchase Agreement
are hereby amended and restated in their entirety in the form
attached hereto.
2. Effect of Amendment/Incorporation of Certain Provisions. Except as amended
as set forth above, the Common Stock Purchase Agreement shall continue in
full force and effect. The provisions set forth in Section 11 of the Common
Stock Purchase Agreement are hereby incorporated by reference into this
Amendment.
* * * * *
IN WITNESS WHEREOF, the Buyer and the Company have caused this First
Amendment to Common Stock Purchase Agreement to be duly executed as of the date
first written above.
THE COMPANY:
UNIGENE LABORATORIES, INC.
By:______________________
Name:
Title:
BUYER:
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By:_______________________
Name: Xxxxxx X. Xxxxxx
Title: President
EXHIBIT F
FORM OF COMPANY RESOLUTIONS
WHEREAS, there has been presented to the Board of Directors of UNIGENE
LABORATORIES, INC., (the "Corporation") a draft of a Common Stock Purchase
Agreement (the "Purchase Agreement") by and among the Corporation and Fusion
Capital Fund II, LLC ("Fusion"), providing for the purchase by Fusion of up to
Twenty One Million Dollars ($21,000,000) of the Corporation's common stock, par
value $.01 (the "Common Stock"); and
WHEREAS, after careful consideration of the Purchase Agreement, the
documents incident thereto and other factors deemed relevant by the Board of
Directors, the Board of Directors has determined that it is advisable and in the
best interests of the Corporation to engage in to transactions contemplated by
the Purchase Agreement.
Transaction Documents
RESOLVED, that the transactions described in the Purchase Agreement are
hereby approved and ____________________________________________ (the
"Authorized Officers") are severally authorized to execute and deliver the
Purchase Agreement, and any other agreements or documents contemplated thereby
(including, without limitation, a Warrant for the purchase of _____ shares of
Company Common Stock (the "Warrant") and a registration rights agreement (the
"Registration Rights Agreement") providing for the sale of the shares of the
Company's Common Stock issuable in respect of the Purchase Agreement) on behalf
of the Corporation, with such amendments, changes, additions and deletions as
the Authorized Officers may deem to be appropriate and approve on behalf of, the
Corporation, such approval to be conclusively evidenced by the signature of an
Authorized Officer thereon; and
FURTHER RESOLVED, that the terms and provisions of the Registration
Rights Agreement by and among the Corporation and Fusion are hereby approved and
the Authorized Officers are authorized to execute and deliver the Registration
Rights Agreement (pursuant to the terms of the Purchase Agreement), with such
amendments, changes, additions and deletions as the Authorized Officer may deem
appropriate and approve on behalf of, an Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and
FURTHER RESOLVED, that the terms and provisions of the Warrant are
hereby approved and the Authorized Officers are authorized to execute and
deliver the Warrant (pursuant to the terms of the Purchase Agreement), with such
amendments, changes, additions and deletions as the Authorized Officer may deem
appropriate and approve on behalf of, an Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and
FURTHER RESOLVED, that the terms and provisions of the Form of Transfer
Agent Instructions (the "Instructions") are hereby approved and the Authorized
Officers are authorized to execute and deliver the Instructions (pursuant to the
terms of the Purchase Agreement), with such amendments, changes, additions and
deletions as the Authorized Officers may deem appropriate and approve on behalf
of, the Corporation, such approval to be conclusively evidenced by the signature
of an Authorized Officer thereon; and
Execution of Purchase Agreement
FURTHER RESOLVED, that the Corporation be and it hereby is authorized
to execute the Purchase Agreement providing for the purchase of common stock of
the Corporation having an aggregate value of up to $___________; and
Issuance of Common Stock
FURTHER RESOLVED, that the Corporation is hereby authorized to issue
the Commitment Shares (as defined in the Purchase Agreement) and that, upon
issuance of the Commitment Shares pursuant to the Purchase Agreement, the
Commitment Shares will be duly authorized, validly issued, fully paid and
nonassessable with no personal liability attaching to the ownership thereof; and
FURTHER RESOLVED, that the Corporation is hereby authorized to issue
the Warrant Shares (as defined in the Purchase Agreement) and that, upon
issuance of the Warrant Shares pursuant to the Warrant, the Warrant Shares will
be duly authorized, validly issued, fully paid and nonassessable with no
personal liability attaching to the ownership thereof; and
FURTHER RESOLVED, that the Corporation is hereby authorized to issue
shares of Common Stock upon the purchase of shares of Common Stock up to the
available amount under the Purchase Agreement (the "Purchase Shares") in
accordance with the terms of the Purchase Agreement and that, upon issuance of
the Purchase Shares pursuant to the Purchase Agreement, the Purchase Shares will
be duly authorized, validly issued, fully paid and nonassessable with no
personal liability attaching to the ownership thereof; and
FURTHER RESOLVED, that the Corporation shall initially reserve
1,000,000 shares of Common Stock for issuance as Warrant Shares under the
Warrant; and
FURTHER RESOLVED, that the Corporation shall initially reserve
_________ shares of Common Stock for issuance as Purchase Shares under the
Purchase Agreement.
Registration Statement
The management of the Corporation has prepared an initial draft of a
Registration Statement on Form ___ (the "Registration Statement") in order to
register the sale of the Purchase Shares and the Commitment Shares
(collectively, the "Shares"); and
The Board of Directors has determined to approve the Registration
Statement and to authorize the appropriate officers of the Corporation to take
all such actions as they may deem appropriate to effect the Offering; and
NOW, THEREFORE, BE IT RESOLVED, that the officers and directors of the
Corporation be, and each of them hereby is, authorized and directed, with the
assistance of counsel and accountants for the Corporation, to prepare, execute
and file with the Securities and Exchange Commission (the "Commission") the
Registration Statement, which Registration Statement shall be filed
substantially in the form presented to the Board of Directors, with such changes
therein as the Chief Executive Officer of the Corporation or any Vice President
of the Corporation shall deem desirable and in the best interest of the
Corporation and its shareholders (such officer's execution thereof including
such changes shall be deemed to evidence conclusively such determination); and
FURTHER RESOLVED, that the officers of the Corporation be, and each of
them hereby is, authorized and directed, with the assistance of counsel and
accountants for the Corporation, to prepare, execute and file with the
Commission all amendments, including post-effective amendments, and
supplements to the Registration Statement, and all certificates, exhibits,
schedules, documents and other instruments relating to the Registration
Statement, as such officers shall deem necessary or appropriate (such officer's
execution and filing thereof shall be deemed to evidence conclusively such
determination); and
FURTHER RESOLVED, that the execution of the Registration Statement and
of any amendments and supplements thereto by the officers and directors of the
Corporation be, and the same hereby is, specifically authorized either
personally or by the Authorized Officers as such officer's or director's true
and lawful attorneys-in-fact and agents; and
FURTHER RESOLVED, that the Authorized Officers are hereby is designated
as "Agent for Service" of the Corporation in connection with the Registration
Statement and the filing thereof with the Commission, and the Authorized
Officers hereby are, authorized to receive communications and notices from the
Commission with respect to the Registration Statement; and
FURTHER RESOLVED, that the officers of the Corporation be, and each of
them hereby is, authorized and directed to pay all fees, costs and expenses that
may be incurred by the Corporation in connection with the Registration
Statement; and
FURTHER RESOLVED, that it is desirable and in the best interest of the
Corporation that the Shares be qualified or registered for sale in various
states; that the officers of the Corporation be, and each of them hereby is,
authorized to determine the states in which appropriate action shall be taken to
qualify or register for sale all or such part of the Shares as they may deem
advisable; that said officers be, and each of them hereby is, authorized to
perform on behalf of the Corporation any and all such acts as they may deem
necessary or advisable in order to comply with the applicable laws of any such
states, and in connection therewith to execute and file all requisite papers and
documents, including, but not limited to, applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and
resolutions; and the execution by such officers of any such paper or document or
the doing by them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from the Corporation and the
approval and ratification by the Corporation of the papers and documents so
executed and the actions so taken; and
FURTHER RESOLVED, that if, in any state where the securities to be
registered or qualified for sale to the public, or where the Corporation is to
be registered in connection with the public offering of the Securities, a
prescribed form of resolution or resolutions is required to be adopted by the
Board of Directors, each such resolution shall be deemed to have been and hereby
is adopted, and the Secretary is hereby authorized to certify the adoption of
all such resolutions as though such resolutions were now presented to and
adopted by the Board of Directors; and
FURTHER RESOLVED, that the officers of the Corporation with the
assistance of counsel be, and each of them hereby is, authorized and directed to
take all necessary steps and do all other things necessary and appropriate to
effect the listing of the Shares on the __________.
Approval of Actions
RESOLVED, that, without limiting the foregoing, the Authorized Officers
are, and each of them hereby is, authorized and directed to proceed on behalf of
the Corporation and to take all such steps as deemed necessary or appropriate,
with the advice and assistance of counsel, to cause the Corporation to
consummate the agreements referred to herein and to perform its obligations
under such agreements; and
RESOLVED, that the Authorized Officers be, and each of them hereby is,
authorized, empowered and directed on behalf of and in the name of the
Corporation, to take or cause to be taken all such further actions and to
execute and deliver or cause to be executed and delivered all such further
agreements, amendments, documents, certificates, reports, schedules,
applications, notices, letters and undertakings and to incur and pay all such
fees and expenses as in their judgment shall be necessary, proper or desirable
to carry into effect the purpose and intent of any and all of the foregoing
resolutions, and that all actions heretofore taken by any officer or director of
the Corporation in connection with the transactions contemplated by the
agreements described herein are hereby approved, ratified and confirmed in all
respects.
EXHIBIT G
FORM OF TRANSFER AGENT INSTRUCTIONS
[Commencement Date]
[TRANSFER AGENT]
[Address]
Attn: __________________
Ladies and Gentlemen:
Reference is made to that certain Common Stock Purchase Agreement (the
"Common Stock Purchase Agreement"), dated as of December 18, 2000, by and
between UNIGENE LABORATORIES, INC., a Delaware corporation (the "Company"), and
FUSION CAPITAL FUND II, LLC (together with its assigns, the "Buyer"), pursuant
to which the Company may sell to the Buyer up to Twenty One Million Dollars
($21,000,000) of the Company's common stock, par value $___ per share (the
"Common Stock"). The shares of Common Stock to be purchased thereunder are
referred to herein as, the "Purchase Shares." In addition, the Company has
issued to the Buyer a warrant (the "Warrant") granting the Buyer the right to
purchase from the Company 1,000,000 shares of Common Stock (the "Warrant
Shares"). This letter shall serve as our irrevocable authorization and direction
to you (provided that you are the transfer agent of the Company at such time) to
issue the Purchase Shares to the Buyer from time to time upon surrender to you
of a properly completed and duly executed Purchase Notice, in the form attached
hereto as Exhibit I, and a Company Confirmation of Purchase Notice, in the form
attached hereto as Exhibit II. This letter shall also serve as our irrevocable
authorization and direction to you (provided that you are the transfer agent of
the Company at such time) to issue the Warrant Shares to the Buyer from time to
time upon surrender to you of a properly completed and duly executed Warrant
Exercise Notice, in the form attached hereto as Exhibit IV, and a Company
Confirmation of Warrant Exercise Notice, in the form attached hereto as Exhibit
V.
Specifically, upon receipt by the Company of a copy of a Purchase Notice,
the Company shall as soon as practicable, but in no event later than one (1)
Trading Day (as defined below) after receipt of such Purchase Notice, send, via
facsimile, a Company Confirmation of Purchase Notice to the Buyer and to you,
which confirmation shall constitute an irrevocable instruction to you to process
such Purchase Notice in accordance with the terms of these instructions and the
Company Confirmation of Purchase Notice. Upon your receipt of a copy of the
executed Purchase Notice and a copy of the applicable Company Confirmation of
Purchase Notice, you shall use your best efforts to, within two (2) Trading Days
following the date of receipt of the Company Confirmation of Purchase Notice,
(A) issue and surrender to a common carrier for overnight delivery to the
address as specified in the Purchase Notice, a certificate, registered in the
name of the Buyer or its designee, for the number of shares of Common Stock to
which the Buyer shall be entitled as set forth in the Company Confirmation of
Purchase Notice or (B) provided you are participating in The Depository Trust
Company ("DTC") Fast Automated Securities Transfer Program, upon the request of
the Buyer, credit such aggregate number of shares of Common Stock to which the
Buyer shall be entitled to the Buyer's or its designee's balance account with
DTC through its Deposit Withdrawal At Custodian ("DWAC") system provided the
Buyer causes its bank or broker to initiate the DWAC transaction. ("Trading Day"
shall mean any day on which the Nasdaq Market is open for customary trading.)
Specifically in regard to Warrant Shares, upon receipt by the Company of a
copy of a Warrant Exercise Notice, the Company shall as soon as practicable, but
in no event later than one (1) Trading Day
after receipt of such Warrant Exercise Notice, send, via facsimile, a Company
Confirmation of Warrant Exercise Notice to the Buyer and to you, which
confirmation shall constitute an irrevocable instruction to you to process such
Warrant Exercise Notice in accordance with the terms of these instructions and
the Company Confirmation of Warrant Exercise Notice. Upon your receipt of a copy
of the executed Warrant Exercise Notice and a copy of the applicable Company
Confirmation of Warrant Exercise Notice, you shall use your best efforts to,
within two (2) Trading Days following the date of receipt of the Company
Confirmation of Warrant Exercise Notice, (A) issue and surrender to a common
carrier for overnight delivery to the address as specified in the Warrant
Exercise Notice, a certificate, registered in the name of the Buyer or its
designee, for the number of shares of Common Stock to which the Buyer shall be
entitled as set forth in the Company Confirmation of Purchase Notice or (B)
provided that (1) a registration statement is available for the sale of the
Warrant Shares at the time of issuance of the respective Warrant Shares and (2)
you are participating in The DTC Fast Automated Securities Transfer Program,
upon the request of the Buyer, credit such aggregate number of shares of Common
Stock to which the Buyer shall be entitled to the Buyer's or its designee's
balance account with DTC through its DWAC system provided the Buyer causes its
bank or broker to initiate the DWAC transaction.
The Company hereby confirms to you and the Buyer that certificates
representing the Purchase Shares and Warrant Shares shall not bear any legend
restricting transfer of the Purchase Shares thereby and should not be subject to
any stop-transfer restrictions and shall otherwise be freely transferable on the
books and records of the Company provided that the Company counsel delivers the
Notice of Effectiveness set forth in Exhibit III attached hereto, and that if
the Purchase Shares or Warrant Shares are not registered for sale under the
Securities Act of 1933, as amended, then the certificates for the Purchase
Shares or Warrant Shares shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES
LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT."
The Company hereby confirms to you and the Buyer that no instructions other
than as contemplated herein will be given to you by the Company with respect to
the Purchase Shares or Warrant Shares.
Please be advised that the Buyer is relying upon this letter as an
inducement to purchase shares of Common Stock under the Common Stock Purchase
Agreement and, accordingly, the Buyer is a third party beneficiary to these
instructions.
Should you have any questions concerning this matter, please contact me at
(___) ___-____.
Very truly yours,
By:__________________________
Name: _______________________
Its: _______________________
ACKNOWLEDGED AND AGREED:
[TRANSFER AGENT]
By:
Name:
Title
Date:
cc: FUSION CAPITAL FUND II, LLC
5
EXHIBIT I
TO TRANSFER AGENT INSTRUCTIONS
FORM OF PURCHASE NOTICE
See attached.
[Attach Exhibit A to Common Stock Purchase Agreement.]
EXHIBIT II
TO TRANSFER AGENT INSTRUCTIONS
FORM OF COMPANY CONFIRMATION OF PURCHASE NOTICE
See attached.
[Attach Exhibit B to Common Stock Purchase Agreement.]
EXHIBIT III
TO TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Date]
[TRANSFER AGENT]
-------------------
-------------------
Re: [__________]
Ladies and Gentlemen:
We are counsel to UNIGENE LABORATORIES, INC., a Delaware corporation (the
"Company"), and have represented the Company in connection with that certain
Common Stock Purchase Agreement (the "Purchase Agreement") entered into by and
among the Company and Fusion Capital Fund II, LLC (the "Holder") pursuant to
which the Company has agreed to issue to the Holder up to Twenty One Million
Dollars ($21,000,000) of the Company's Common Stock, par value $0.01 per share
(the "Common Stock") (the "Purchase Shares"), in accordance with the terms of
the Purchase Agreement, and (ii) the Company issued to the Holder 2,000,000
shares of Common Stock (the "Commitment Shares"). Pursuant to the Common Stock
Purchase Agreement, the Company also has also agreed to issue to the Buyer a
warrant (the "Warrant") granting the Buyer the right to purchase from the
Company 1,000,000 shares of Common Stock (the "Warrant Shares"). Pursuant to the
Purchase Agreement, the Company also has entered into a Registration Rights
Agreement with the Holder (the "Registration Rights Agreement") pursuant to
which the Company agreed, among other things, to register the Purchase Shares,
the Warrant Shares and the Commitment Shares under the Securities Act of 1933,
as amended (the "1933 Act"). In connection with the Company's obligations under
the Purchase Agreement and the Registration Rights Agreement, on _____________,
the Company filed a Registration Statement (File No. 333-_____________) (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") relating to the sale of the Purchase Shares, the Warrant Shares and the
Commitment Shares.
In connection with the foregoing, we advise you that a member of the SEC's
staff has advised us by telephone that the SEC has entered an order declaring
the Registration Statement effective under the 1933 Act at [ENTER TIME OF
EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after
telephonic inquiry of a member of the SEC's staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and the Purchase Shares,
the Warrant Shares and the Commitment Shares are available for sale under the
1933 Act pursuant to the Registration Statement.
The Buyer has confirmed it shall comply with all securities laws and
regulations applicable to it including applicable prospectus delivery
requirements upon sale of the Commitment Shares, the Warrant Shares or the
Purchase Shares.
Very truly yours,
[Company Counsel]
By:____________________
cc: Fusion Capital Fund II, LLC
EXHIBIT IV
TO TRANSFER AGENT INSTRUCTIONS
WARRANT EXERCISE FORM
Date:_____________
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Ladies and Gentlemen:
The undersigned, being the registered holder of your Warrant number ______
accompanying this letter, hereby irrevocably exercises such Warrant for _____
shares of Warrant Shares (as defined in said Warrant), and herewith makes
payment therefor in the amount of ($___________ )(via "cash-less exercise" in
accordance with the Warrant), and requests that such shares of Warrant Shares be
issued in the name of, and delivered to (the undersigned)
(_________________________), at the address shown below the signature line
hereof.
If said number of shares shall not be all the shares issuable upon exercise of
the attached Warrant, a new Warrant is to be issued in the name of the
undersigned for the balance remaining of such shares less any fraction of a
share paid in cash.Sincerely,FUSION CAPITAL FUND II, LLC
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Signature of Registered Warrant Holder
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Address
EXHIBIT V
TO TRANSFER AGENT INSTRUCTIONS
FORM OF COMPANY CONFIRMATION OF WARRANT EXERCISE
Reference is made to the Common Stock Purchase Agreement (the "Common Stock
Purchase Agreement") between UNIGENE LABORATORIES, INC. (the "Company") and
FUSION CAPITAL FUND II, LLC dated December 18, 2000, as amended March 30, 2001.
In accordance with and pursuant to the Common Stock Purchase Agreement, the
Company has issued to FUSION CAPITAL FUND II, LLC a Warrant to Purchase
1,000,000 shares of common stock, par value $.01 per share (the "Common Stock")
of the Company. The undersigned hereby confirms that FUSION CAPITAL FUND II, LLC
has exercised the Warrant to purchase _____ shares of Common stock and
authorizes the issuance of ______ shares of common stock, par value $.01 per
share (the "Common Stock") of the Company, in connection with the Warrant
Exercise Notice Specifically, the Company hereby confirms the following
information:
Number of shares of Common
Stock to be issued:
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Remaining Number of shares
Subject to Exercise:
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Exercise Price: $.50/share of Common Stock
(Subject to Adjustment pursuant
to the Warrant)
The shares of Common Stock shall be issued in the name and to the address as set
forth in the applicable Warrant Exercise Notice.
Authorized Signature
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Name:
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Title:
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Phone #:
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Fax #:
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