COMMON STOCK PRIVATE PURCHASE AGREEMENT
This COMMON STOCK PRIVATE PURCHASE AGREEMENT (this "Agreement') is dated as
of January 27, 2003 by and between Nymox Pharmaceutical Corporation, a Canadian
corporation (the "Company"), and Lorros-Greyse Investments, Ltd. (the
"Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions
(a) "Average Price" shall be the average of the Closing Prices of the
Company's Common Stock for each Trading Day in the Draw Down Period.
(b) "Closing Price" shall mean the price for the last reported trade as
recorded by the Principal Market for the Trading Day.
(c) "Current SEC Documents" shall mean the Company's Annual Report, as
amended, for the year ended December 31, 2001, including the accompanying
financial statements, and the Company's latest Quarterly Report, as filed with
the U.S. Securities and Exchange Commission (the "SEC") and as available on the
SEC's Electronic Data Gathering, Analysis, and Retrieval system ("XXXXX").
(d) "Draw Down" shall have the meaning assigned to such term in Section
6.1(a) hereof.
(e) "Draw Down Closing Date" shall have the meaning assigned to such term
in Section 6.1(b) hereof.
(f) "Draw Down Pricing Period" shall have the meaning assigned to such term
in Section 6.1(a) hereof.
(g) "Material Adverse Effect" shall mean any adverse effect on the
business, operations, properties or financial condition of the Company that
materially impairs the ability of the Company and its subsidiaries and
affiliates, taken as a whole, to perform any of its material obligations under
this Agreement or to carry on its obligations, and shall include the loss for
any reason to the Company of the services of Xx. Xxxx Xxxxxxxx.
(h) "Principal Market" shall mean initially the Nasdaq SmallCap Market, and
shall include the Nasdaq National Market, the American Stock Exchange or the New
York Stock Exchange if the Company is listed and trades on such market or
exchange.
(i) "SEC Documents" shall mean all reports, schedules, forms, statements
and other documents or material that are available on the SEC's XXXXX system and
that were filed by the Company with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including material filed pursuant to Section 13(a) or 15(d) of the
Exchange Act and filings incorporated by reference.
(j) "Shares" shall mean, collectively, the shares of Common Stock of the
Company being subscribed for hereunder, or, in the appropriate context, the
shares of Common Stock of the Company issued with respect to a Draw Down.
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(k) "Trading Day" shall mean any day on which the Principal Market is open
for business.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 Purchase and Sale of Stock. Subject to the terms and conditions
of this Agreement, the Company shall issue and sell to the Purchaser and the
Purchaser shall purchase from the Company up to Five Million Dollars
($5,000,000) of the Company's Common Stock, no par value per share (the "Common
Stock"), based on Draw Downs requested under this Agreement.
Section 2.2 The Shares. The Company has authorized and has reserved and
covenants to continue to reserve, free of preemptive rights and other similar
contractual rights of stockholders, a sufficient number of its authorized but
unissued shares of its Common Stock to cover the Shares to be issued in
connection with all Draw Downs requested under this Agreement. At no time will
the Company request a Draw Down which would result in the issuance of a number
of shares of Common Stock pursuant to this Agreement which exceeds 4.9% of the
number of shares of Common Stock issued and outstanding on the Closing Date
without obtaining stockholder approval of such excess issuance.
Section 2.3 Purchase Price and Closing. The Company agrees to issue and
sell to the Purchaser and the Purchaser agrees to purchase that number of the
Shares to be issued in connection with each Draw Down. Each party shall deliver
all documents, instruments and writings required to be delivered by such party
pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representation and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) Organization, Good Standing and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the federal laws
of Canada and has the requisite corporate power to own, lease and operate its
properties and assets and to conduct its business as it is now being conducted.
The Company does not have any subsidiaries except as set forth in the Current
SEC Documents. The Company and each such subsidiary is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary except for any jurisdiction in which the failure to be
so qualified will not have a Material Adverse Effect on the Company's financial
condition.
(b) Authorization, Enforcement. The Company has the requisite corporate
power and authority to enter into and perform this Agreement and to issue and
sell the Shares in accordance with the terms hereof. The execution, delivery and
performance of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required. This Agreement has been duly executed and delivered, and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditor's rights and remedies or by other
equitable principles of general application.
(c) Capitalization. The Company currently has issued and outstanding
23,020,954 shares of its Common Stock, all of which have been duly and validly
authorized and are fully-paid and non-assessable.
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Except as set forth in this Agreement and as set forth in the Current SEC
Documents, no shares of Common Stock are entitled to preemptive rights or
registration rights and there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company. Furthermore, except as set forth in the SEC Documents,
there are no contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of the capital
stock of the Company or options, securities or rights convertible into shares of
capital stock of the Company. The Company is not a party to, and it has no
knowledge of, any agreement restricting the voting or transfer of any shares of
the capital stock of the Company. Except as set forth in the Current SEC
Documents, the offer and sale of all capital stock, convertible securities,
rights, warrants, or options of the Company issued prior to the Closing complied
with all applicable United States Federal and state and Canadian and provincial
securities laws, and no stockholder has a right of rescission or damages with
respect thereto which would have a Material Adverse Effect on the Company's
financial condition or operating results. The Company has made available to the
Purchaser on request true and correct copies of the Company's Articles of
Incorporation as in effect on the date hereof (the "Articles"), and the
Company's Bylaws as in effect on the date hereof (the "Bylaws"). The Principal
Market for the Common Stock in the United States is the Nasdaq SmallCap Market,
and the Company has not received any notice from such market questioning or
threatening the continued inclusion of the Common Stock on such market.
(d) Issuance of Shares. The Shares to be issued under this Agreement have
been duly authorized by all necessary corporate action and, when paid for or
issued in accordance with the terms hereof, the Shares shall be validly issued
and outstanding, fully paid and non-assessable, and the Purchaser shall be
entitled to all rights accorded to a holder of Common Stock.
(e) No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated herein do not and will not (i) violate any provision of the
Company's Articles or Bylaws, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond,
license, lease agreement, instrument or obligation to which the Company is a
party, (iii) create or impose a lien, charge or encumbrance on any property of
the Company under any agreement or any commitment to which the Company is a
party or by which the Company is bound or by which any of its respective
properties or assets are bound, or (iv) result in a violation of any United
States Federal, state, local or Canadian, provincial, or other foreign statute,
rule, regulation, order, judgment or decree (including any United States Federal
and state or Canadian or provincial securities laws and regulations) applicable
to the Company or any of its subsidiaries or by which any property or asset of
the Company or any of its subsidiaries are bound or affected, except, in all
cases, for such conflicts, defaults, termination, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect. The business of the Company and its subsidiaries
is not being conducted in violation of any laws, ordinances or regulations of
any governmental entity, except for possible violations which singularly or in
the aggregate do not and will not have a Material Adverse Effect. The Company is
not required under any United States Federal, state or local or Canadian or
provincial law, rule or regulation to obtain any consent, authorization or order
of, or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement, or issue and sell the Shares in accordance with the terms hereof
(other than any prior notification required to the Nasdaq Stock Market of the
listing of additional shares and approval of the Quebec Securities Commission
for a distribution of shares outside of Quebec and any filings subsequent to the
Agreement Closing which may be required to be made by the Company with the SEC,
the Quebec Securities Commission, the Nasdaq Stock Market or state or provincial
securities administrators and any registration statement, if any, which may be
filed pursuant hereto); provided that, for purpose of the representation made in
this sentence, the Company is assuming and relying upon the accuracy of the
relevant representations and agreements of the Purchaser herein.
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(f) SEC Documents, Financial Statements. The Common Stock of the Company is
registered pursuant to Section 12(g) of the Exchange Act, and, except as
disclosed in the SEC Documents, the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d) of the Exchange Act. The
Company has electronically filed true and complete copies of SEC Documents with
the SEC's Electronic Data Gathering, Analysis, and Retrieval system ("XXXXX")
since August 8, 1996 and the Purchaser acknowledges having access to the XXXXX
system and the SEC Documents. The Company has not provided to the Purchaser any
information which, according to applicable law, rule or regulation, should have
been disclosed publicly by the Company but which has not been so disclosed,
other than with respect to the transactions contemplated by this Agreement. As
of their filing dates, the Current SEC Documents complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC promulgated thereunder applicable to such documents, and, as of their
filing dates, the Current SEC Documents did not contain any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in accordance with
Canadian generally accepted accounting principles ("GAAP") applied on a
consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements), and fairly present in all material
respects the financial position of the Company and its subsidiaries as of the
dates thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(g) Subsidiaries. The Current SEC Documents hereto set forth each
subsidiary of the Company, showing the jurisdiction of its incorporation or
organization and showing the Company's ownership of the outstanding stock or
other interests of such subsidiary. All of the outstanding shares of capital
stock of each subsidiary have been duly authorized and validly issued, and are
fully paid and non-assessable. Neither the Company nor any subsidiary is a party
to, nor has any knowledge of, any agreement restricting the voting or transfer
of any shares of the capital stock of any subsidiary.
(h) No Material Adverse Effect. Since September 30, 2002, the date through
which the most recent quarterly of the Company has been prepared and filed with
the SEC, neither the Company nor its subsidiaries has experienced or suffered
any Material Adverse Effect or incurred any liabilities, obligations, debts,
claims or losses which, individually or in the aggregate, has had a Material
Adverse Effect on the Company or its subsidiaries.
(i) No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to the Company or its subsidiaries or their
respective businesses, properties, prospects, operations or financial condition,
which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
(j) Title to Assets. Each of the Company and the subsidiaries has good and
marketable title to all of its real and personal property reflected in the SEC
Documents, free of any mortgages, pledges, charges, liens, security interests or
other encumbrances, except for those indicated in the Current SEC Documents or
such that do not cause a Material Adverse Effect on the Company's financial
condition or operating results. All said leases of the Company and each of its
subsidiaries are valid and subsisting and in full force and effect.
(k) Actions Pending. There is no action, suit, claim, investigation or
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any subsidiary which questions the validity of this Agreement or the
transactions contemplated hereby or any action taken or to be taken pursuant
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hereto or thereto. Except as set forth in the Current SEC Documents or such that
do not cause a Material Adverse Effect, there are no outstanding orders,
judgments, injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body against the Company or any subsidiary nor any
actions, suits, claims, investigations or proceedings pending or, to the
knowledge of the Company, threatened, against or involving the Company, any
subsidiary or any of their respective properties or assets.
(l) Compliance with Law. The business of the Company and its subsidiaries
has been and is presently being conducted in accordance with all applicable
United States Federal, state and local and Canadian and provincial governmental
laws, rules, regulations and ordinances, except as set forth in the Current SEC
Documents or such that do not cause a Material Adverse Effect. The Company and
each of its subsidiaries have all franchises, permits, licenses, consents and
other governmental or regulatory authorizations and approvals necessary for the
conduct of their respective businesses as now being conducted by them unless the
failure to possess such franchises, permits, licenses, consents and other
governmental or regulatory authorizations and approvals, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(m) Taxes. Except as set forth in the Current SEC Documents, the Company
and each of the subsidiaries has accurately prepared and filed all United States
Federal and state and Canadian and provincial and other tax returns required by
law to be filed by it, has paid or made provisions for the payment of all taxes
shown to be due and all additional assessments, and adequate provision have been
and are reflected in the financial statements of the Company and the
subsidiaries for all current taxes and other charges to which the Company or any
subsidiary is subject and which are not currently due and payable. The Company
has no knowledge of any additional assessments, adjustments or contingent tax
liability (whether federal, state or provincial) pending or threatened against
the Company or any subsidiary for any period, nor of any basis for any such
assessment, adjustment or contingency.
(n) Operation of Business. The Company and each of the subsidiaries owns or
possesses all patents, trademarks, service marks, trade names, copyrights,
licenses and authorizations as set forth in the Current SEC Documents, and all
rights with respect to the foregoing, which are necessary for the conduct of its
business as now conducted without any conflict with the rights of others.
(o) Regulatory Compliance. Except as disclosed in the Current SEC Documents
or such that do not cause a Material Adverse Effect, the Company and each of its
subsidiaries have obtained all material approvals, authorization, certificates,
consents, licenses, orders and permits or other similar authorizations of all
governmental authorities, or from any other person, that are required under any
Food and Drug or Environmental Laws. "Environmental Laws" shall mean all
applicable laws and regulations in the United States or Canada relating to the
protection of the environment including, without limitation, all requirements
pertaining to reporting, licensing, permitting, controlling, investigating or
remediating emissions, discharges, releases or threatened releases of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
materials or wastes, whether solid, liquid or gaseous in nature, into the air,
surface water, groundwater or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal transport or handling or
hazardous substances, chemical substances, pollutants, contaminants or toxic
substances, material or wastes, whether solid, liquid or gaseous in nature.
"Food and Drug Laws" shall mean all applicable laws and regulations in the
United States and Canada relating to the development, testing, manufacturing and
distribution of pharmaceutical products. Except as set forth in the Current SEC
Documents or such that do not cause a Material Adverse Effect, the Company has
all necessary governmental approvals required under all Food and Drug and
Environmental Laws and used in its business or in the business of any of its
subsidiaries.
(p) Books and Records. The records and documents of the Company and its
subsidiaries accurately reflect in all material respects the information
relating to the business of the Company and the subsidiaries, the location and
collection of their assets, and the nature of all transactions giving rise to
the obligations or accounts receivable of the Company or any subsidiary.
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(q) Securities Laws Compliance. The Company has complied and will comply
with all applicable United States Federal and state and Canadian and provincial
securities laws in connection with the offer, issuance and sale of the Shares
hereunder. Neither the Company nor anyone acting on its behalf, directly or
indirectly, has or will sell, offer to sell or solicit offers to buy the Shares
or similar securities to, or solicit offers with respect thereto from, or enter
into any preliminary conversations or negotiations relating thereto with, any
person (other than the Purchaser), so as to bring the issuance and sale of the
Shares under the registration provisions of the Securities Act and applicable
state securities laws. Neither the Company nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) or directed selling efforts (within the meaning of
Regulation S under the Securities Act) in connection with the offer or sale of
the Shares. The Company is a "foreign issuer" within the meaning of Regulation S
and Rule 405 under the Securities Act.
(r) Governmental Approvals. Except as set forth in the Current SEC
Documents, and except for the filing of any notice or the obtaining of any
necessary approvals or exemptions prior or subsequent to the Closing that may be
required under applicable United States Federal or state and Canadian or
provincial securities laws (which if required, shall be filed on a timely
basis), no authorization, consent, approval, license, exemption of, filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, is or will be necessary
for, or in connection with, the execution or delivery of the Shares, or for the
performance by the Company of its obligations under this Agreement.
(s) Employees. Neither the Company nor any subsidiary has any collective
bargaining arrangements or agreements covering any of its employees, except as
set forth in the Current SEC Documents. Except as set forth in the Current SEC
Documents or such that do not cause a Material Adverse Effect, neither the
Company nor any subsidiary is in breach of any employment contract, agreement
regarding proprietary information, noncompetition agreement, nonsolicitation
agreement, confidentiality agreement, or any other similar contract or
restrictive covenant, relating to the right of any officer, employee or
consultant to be employed or engaged by the Company or such subsidiary. Since
the date of the latest Current SEC Document, no officer, consultant or key
employee of the Company or any subsidiary whose termination, either individually
or in the aggregate, could have a Material Adverse Effect, has terminated or, to
the knowledge of the Company, has any present intention of terminating his or
her employment or engagement with the Company or any subsidiary.
(t) Use of Proceeds. The proceeds from the sale of the Shares will be used
by the Company and its subsidiaries for general corporate purposes.
(u) Acknowledgment Regarding Purchaser's Purchase of Shares. Company
acknowledges and agrees that Purchaser is acting solely in the capacity of arm's
length purchaser with respect to this Agreement and the transactions
contemplated hereunder and that the Company's decision to enter into this
Agreement has been based solely on the independent evaluation by the Company and
its own representatives and counsel.
Section 3.2 Representations and Warranties of the Purchaser. The Purchaser
hereby makes the following representations, acknowledgements and warranties to
the Company:
(a) Organization and Standing of the Purchaser. The Purchaser is a company
duly incorporated, validly existing and in good standing under the laws of the
Republic of Panama and maintains its principal place of business in Panama. The
Purchaser does not maintain a place of business in the United States or Canada,
is not a resident of the United States or Canada and is not beneficially owned
by any U.S. person within the meaning of Regulation S promulgated under the
Securities Act.
(b) Authorization and Power. The Purchaser has the requisite power and
authority to enter into and perform this Agreement and to purchase the Shares
being sold to it hereunder. The execution,
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delivery and performance of this Agreement by Purchaser and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary corporate action.
(c) No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by the Purchaser of the transactions contemplated hereby or
relating hereto do not and will not (i) result in a violation of such
Purchaser's charter documents or bylaws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or instrument to which
the Purchaser is a party, or result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or governmental agency
applicable to the Purchaser or its properties (except for such conflicts,
defaults and violations as would not, individually or in the aggregate, have a
Material Adverse Effect on Purchaser).
(d) Financial Risks. The Purchaser acknowledges that it is able to bear the
financial risks associated with an investment in the Shares and that it has been
given full access to such records of the Company and the subsidiaries and to the
officers of the Company and the subsidiaries as it has deemed necessary or
appropriate to conduct its due diligence investigation. The Purchaser is capable
of evaluating the risks and merits of an investment in the Shares by virtue of
its experience as an investor and its knowledge, experience, and sophistication
in financial and business matters and the Purchaser is capable of bearing the
entire loss of its investment in the Shares.
(e) Accredited Investor. The Purchaser by itself or together with its
adviser(s), is an "accredited investor", as such term is defined in Regulation D
promulgated by the SEC under the Securities Act, is experienced in investments
and business matters, has made investments of a speculative nature and, with its
representatives, has such knowledge and experience in financial, tax and other
business matters as to enable the Purchaser to utilize the information made
available by the Company to evaluate the merits and risks of and to make an
informed investment decision with respect to the proposed purchase, which
represents a speculative investment.
(f) Reliance upon Regulation S The Purchaser acknowledges that it is
purchasing the Shares pursuant to an exemption from registration under the
United States securities laws in reliance upon Regulation S promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). Accordingly, the
Purchaser will not offer or sell any of the Shares to or for the benefit or
account of a person resident in the United States or entity existing or
incorporated under the laws of the United States or otherwise defined as a "U.S.
person" under Regulation S for a period of at least forty (40) days from the
date on which the Shares are purchased, unless such Shares are registered under
the Securities Act or exempt from registration;
(g) Access to Publicly Available Documents The Purchaser acknowledges that
it or its advisors has access to all publicly-available documents or reports of
the Company, including the SEC Documents and the Company's press releases, and
that it or its advisors has reviewed and understands such documents or reports.
The Purchaser acknowledges that the Company has not provided to the Purchaser
any information which, according to applicable law, rule or regulation, should
have been disclosed publicly by the Company but which has not been so disclosed,
other than with respect to the transactions contemplated by this Agreement.
(h) Purchase for Investment The Purchaser is purchasing the Shares solely
for investment, for its own account, and not with a present intent to resell or
otherwise to distribute any of the Shares. The Purchaser further represents that
the Purchaser has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for or which is
likely to compel a disposition in any manner of any of the Shares, that the
Purchaser is not aware of any circumstances presently in existence which are
likely to promote in the future any disposition by the Purchaser of the Shares
and that the Purchaser does not presently contemplate any sale of any of the
Shares upon the occurrence or nonoccurrence of any predetermined or undetermined
event or circumstance.
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(i) Not A U.S. Person. The Purchaser is not a "U.S. person" or "a person in
the United States" within the meaning of Regulation S promulgated under the
Securities Act.
(j) No Prior Short Selling. The Purchaser represents and warrants to the
Company that at no time prior to the date of this Agreement has any of the
Purchaser, its agents, representatives or affiliates engaged in or effected, in
any manner whatsoever, directly or indirectly, any (i) "short sale" (as such
term is defined in Rule 3b-3 of the Exchange Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the
Common Stock.
(k) General. The Purchaser understands that the Company is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of the Purchaser set forth herein in order to
determine the suitability of the Purchaser to acquire the Shares. The Purchaser
represents that any information which the Purchaser is furnishing to the Company
in this Agreement, including, without limitation, the information provided on
the signature page hereof, is correct and complete, and if such information or
responses should cease to be correct at any time following the date hereof, the
Purchaser will immediately furnish fully revised or corrected information to the
Company.
(l) Survival. The foregoing representations, warranties and agreements of
the Purchaser shall survive this Agreement.
ARTICLE IV
COVENANTS
Section 4.1 The Company's Covenants. The Company covenants with the Purchaser as
follows:
(a) Securities Compliance. The Company shall notify The Nasdaq Stock
Market, Inc., in accordance with their rules and regulations, of the
transactions contemplated by this Agreement, and shall take all other necessary
action and proceedings as may be required and permitted by applicable law, rule
and regulation, for the legal and valid issuance of the Shares to the Purchaser
or subsequent holders.
(b) Registration and Listing. The Company will cause its Common Stock to
continue to be registered under Sections 12(b) or 12(g) of the Exchange Act,
will comply in all respects with its reporting and filing obligations under the
Exchange Act, and will not take any action or file any document (whether or not
permitted by the Securities Act or the rules promulgated thereunder) to
terminate or suspend its reporting and filing obligations under the Exchange Act
or Securities Act, except as permitted herein. The Company will take all action
necessary to continue the listing or trading of its Common Stock on the Nasdaq
SmallCap Market or another Principal Market and will comply in all respects with
the Company's reporting, filing and other obligations under the bylaws or rules
of the NASD and The Nasdaq Stock Market.
(c) Compliance with Laws. The Company shall comply, and cause each
subsidiary to comply, with all applicable laws, rules, regulations and orders,
noncompliance with which could have a Material Adverse Effect.
(d) Keeping of Records and Books of Account. The Company shall keep and
cause each subsidiary to keep adequate records and books of account, in which
complete entries will be made in accordance with Canadian GAAP consistently
applied, reflecting all financial transactions of the Company and its
subsidiaries, and in which, for each fiscal year, all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its business shall be made.
(e) Amendments. The Company shall not amend or waive any provision the
Articles of Incorporation, Bylaws of the Company in any way that would adversely
affect the voting rights of the holders of the Shares.
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(f) Other Agreements. The Company shall not enter into any agreement the
terms of which such agreement would restrict or impair the right to perform of
the Company or any subsidiary under this Agreement or the Articles of
Incorporation of the Company.
(g) Notice of Certain Events Affecting the Purchase or Sale. The Company
will immediately notify the Purchaser upon the occurrence of any of the
following events in respect of the issuance, purchase, sale, trading or
distribution of the Shares pursuant to this Agreement: (i) receipt of any
notification by the SEC, any state or provincial securities commission or any
other regulatory authority with respect to the suspension of the qualification
or exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (ii) issuance by the SEC, any state or provincial securities
commission or any other regulatory authority of any stop order or of any order
preventing or suspending any issuance, sale, purchase, trading or distribution
of the Shares under this Agreement, or of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, or the initiation or
threatening of any proceeding for any such purpose.
(h) Consolidation; Merger. The Company shall not, at any time after the
date hereof, effect any merger or consolidation of the Company with or into, or
a transfer of all or substantially all of the assets of the Company to, another
entity (a "Consolidation Event") unless the resulting successor or acquiring
entity (if not the Company) assumes by written instrument or by operation of law
the obligation to deliver to the Purchaser such shares of stock and/or
securities as the Purchaser is entitled to receive pursuant to this Agreement.
(i) Compliance with Regulation S. The sale of the Shares shall be made in
accordance with the provisions and requirements of Regulation S and any
applicable federal, state or provincial securities law. The Company shall make
any necessary SEC or other regulatory filings required to be made by the Company
in connection with the sale of the Shares to the Purchaser as required by all
applicable federal, state and provincial laws, and shall provide a copy thereof
to the Purchaser upon request.
Section 4.2 The Purchaser's Covenants
(a) Limitation on Short Sales and Hedging Transactions. The Purchaser
agrees that beginning on the date of this Agreement and ending on the date of
termination or expiration of this Agreement, the Purchaser and its agents,
representatives and affiliates shall not in any manner whatsoever enter into or
effect, directly or indirectly, any (i) "short sale" (as such term is defined in
Rule 3b-3 of the Exchange Act) of the Common Stock or (ii) hedging transaction,
which establishes a net short position with respect to the Common Stock.
(b) Compliance with Regulation S. The purchase of the Shares shall be made
in accordance with the provisions and requirements of Regulation S and any
applicable federal, state or provincial securities law. The Purchaser's trading
and distribution activities with respect to shares of the Company's Common Stock
shall be in compliance with all applicable federal, state and provincial
securities laws, rules and regulations and rules and regulations of the
Principal Market on which the Company's Common Stock is listed including,
without limitation, Regulation S.
(c) Notice of Certain Events Affecting The Purchase or Sale. The Purchaser
will immediately notify the Purchaser upon the occurrence of any of the
following events in respect of the issuance, purchase, sale, trading or
distribution of the Shares pursuant to this Agreement: (i) receipt of any
notification by the SEC, any state or provincial securities commission or any
other regulatory authority with respect to the suspension of the qualification
or exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (ii) issuance by the SEC, any state or provincial securities
commission or any other regulatory authority of any stop order or of any order
preventing or suspending any issuance, sale, purchase, trading or distribution
of the Shares under this Agreement, or of
9
the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or threatening of any proceeding for any such
purpose.
(d) Material Changes in Purchaser's Status The Purchaser will immediately
notify the Company of any changes in circumstance that may reasonably affect the
availability of the exemption from registration under the Securities Act and the
rules and regulations promulgated thereunder, including, without limitation, any
changes that may affect the Purchaser's status as an "accredited investor", as
such term is defined in Regulation D or as a person or entity that is not a U.S.
person or a person in the United States for the purposes of Regulation S.
ARTICLE V
CONDITIONS TO CLOSING AND DRAW DOWNS
Section 5.1 Conditions Precedent to the Obligation of the Company to Sell
the Shares. The obligation hereunder of the Company to issue and sell the Shares
to the Purchaser is subject to the satisfaction or waiver, at or before the
Agreement Closing or at or before each Draw Down Closing, of each of the
conditions set forth below. These conditions are for the Company's sole benefit
and may be waived by the Company at any time in its sole discretion.
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing and as of each
Draw Down Closing Date as though made at that time, except for representations
and warranties that speak as of a particular date.
(b) Performance by the Purchaser. The Purchaser shall have performed,
satisfied and complied in all material respects with all material covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Purchaser at or prior to the Closing and as of each Draw
Down Closing Date.
(c) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction which prohibits
the consummation of any of the transactions contemplated by this Agreement.
Section 5.2 Conditions Precedent to the Obligation of the Purchaser to
Close. The obligation hereunder of the Purchaser to enter this Agreement is
subject to the satisfaction or waiver, at or before the Agreement Closing and at
or before each Draw Down Closing, of each of the conditions set forth below.
These conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
(a) Accuracy of the Company's Representations and Warranties. Each of the
representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing as though made
at that time (except for representations and warranties that speak as of a
particular date).
(b) Performance by the Company. The Company shall have performed, satisfied
and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of
10
competent jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement.
(d) No Proceedings or Litigation. No action, suit or proceeding before any
arbitrator or any governmental authority shall have been commenced, and no
investigation by any governmental authority shall have been threatened, against
the Purchaser or the Company or any subsidiary, or any of the officers,
directors or affiliates of the Company or any subsidiary seeking to restrain,
prevent or change the transactions contemplated by this Agreement, or seeking
damages in connection with such transactions.
(e) No Suspension. Trading in the Company's Common Stock shall not have
been suspended by the SEC or The Nasdaq Stock Market, Inc. (except for any
suspension of trading of limited duration agreed to by the Company, which
suspension shall be terminated prior to each Draw Down request), and, at any
time prior to such request, trading in securities generally as reported by
Nasdaq shall not have been suspended or limited, or minimum prices shall not
have been established on securities whose trades are reported by Nasdaq.
(f) Material Adverse Effect. No Material Adverse Effect and no
Consolidation Event shall have occurred.
ARTICLE VI
DRAW DOWN TERMS
Section 6.1 Draw Down Terms. Subject to the satisfaction of the conditions
set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue and exercise a draw
down (a "Draw Down"), which Draw Down the Purchaser will be obligated to accept.
The Company shall issue the Draw Down by giving the Purchaser a Draw Down Notice
specifying the total Draw Down amount and the date of the Draw Down Notice. The
Draw Down Period shall be the five (5) Trading Days specified in the Draw Down
Notice immediately preceding the date of the Draw Down Notice.
(b) Only one Draw Down shall be allowed for each Draw Down Pricing Period.
The price per share paid by the Purchaser shall be based on the Average Daily
Price on each separate Trading Day during the Draw Down Pricing Period. The
number of shares of Common Stock purchased by the Purchaser with respect to each
Draw Down shall be determined on the Draw Down Closing Date, which shall be the
next Trading Day following the Draw Down date.
(c) The Company shall have the right to issue and exercise a Draw Down of
up to $500,000 of the Company's Common Stock per Draw Down, subject to the
limitations set forth immediately below. The minimum Draw Down shall be $150,000
unless otherwise agreed by Purchaser.
(d) The number of Shares of Common Stock to be issued in connection with
each Draw Down shall be equal to the Draw Down amount divided by 97% of the
Average Price of the Common Stock for the Draw Down Pricing Period.
(e) The Company must provide the Purchaser via facsimile transmission the
Draw Down Notice. At no time shall the Purchaser be required to purchase more
than the Draw Down amount specified for a given Draw Down Pricing Period.
(f) On or before three Trading Days after each Draw Down Closing Date, the
Purchaser shall pay the specified Draw Down amount to the Company. Upon receipt
of the Draw Down payment, the Company shall deliver the Shares to the Purchaser
in accordance with any instructions from the Purchaser.
11
ARTICLE VII
LEGENDS; TRANSFER AGENT INSTRUCTIONS
Section 7.1 Legends. Unless otherwise provided below, each certificate
representing Shares will bear the following legend or equivalent (the "Legend"):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY REGULATION
S AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR
OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH
REGISTRATION.
Section 7.2 Transfer Agent Instructions. Upon the settlement of a Draw
Down, the Company shall issue to the transfer agent for its Common Stock (and to
any substitute or replacement transfer agent for its Common Stock upon the
Company's appointment of any such substitute or replacement transfer agent)
instructions substantially in the form of Exhibit E hereto. Such instructions
shall be irrevocable by the Company from and after the date hereof or from and
after the issuance thereof to any such substitute or replacement transfer agent,
as the case may be.
Section 7.3 No Other Legend or Stock Transfer Restrictions. No legend other
than the one specified in Section 7.1 shall be placed on the share certificates
representing the Shares and no instructions or "stop transfer orders," "stock
transfer restrictions," or other restrictions shall be given to the Company's
transfer agent with respect thereto other than as expressly set forth in this
Article VII, and the prohibition of transfers of the Shares except in compliance
with the requirements of Regulations S, which the Investor hereby acknowledges.
Section 7.4 Investor's Compliance. Nothing in this Article shall affect in
any way the Investor's obligations to comply with all applicable securities laws
upon resale of the Common Stock.
ARTICLE VIII
TERMINATION
Section 8.1 Termination by Mutual Consent. The term of this Agreement shall
be twenty-four (24) months from the date of execution of this Agreement. This
Agreement may be terminated at any time by mutual written consent of the
parties.
Section 8.2 Other Termination.
(a) The Purchaser may terminate this Agreement upon ten (10) Trading Days'
notice if (i) an event resulting in a Material Adverse Effect has occurred, (ii)
the Common Stock is de-listed from the Nasdaq SmallCap Market unless such
de-listing is in connection with the listing of the Common Stock on the Nasdaq
National Market, the New York or American Stock Exchanges, (iii) the Company
files for protection from creditors under any applicable law, or (iv) the
Company fails to deliver the Shares to the Purchaser in accordance with the
instructions from the Purchaser.
12
(b) The Company may terminate this Agreement upon ten (10) Trading Days'
notice if (i) the Company has completed Draw Downs of at least Three Million
Dollars ($3,000,000) or (ii) the Purchaser shall fail to fund a properly noticed
Draw Down within ten (10) Trading Days of the date payment for such Draw Down is
due.
(c) Effect of Termination. In the event of termination by the Company or
the Purchaser, written notice thereof shall forthwith be given to the other
party and the transactions contemplated by this Agreement shall be terminated
without further action by either party. If this Agreement is terminated as
provided in Section 8.1 or 8.2 herein, this Agreement shall become void and of
no further force and effect, except for Articles IX and XI herein. Nothing in
this Section 8.3 shall be deemed to release the Company or the Purchaser from
any liability for any breach under this Agreement, or to impair the rights to
the Company and the Purchaser to compel specific performance by the other party
of its obligations under this Agreement
ARTICLE IX
INDEMNIFICATION
Section 9.1 General Indemnity. The Company agrees to indemnify and hold
harmless the Purchaser (and its directors, officers, affiliates, agents,
successors and assigns) from and against any and all losses, liabilities,
deficiencies, costs, damages and expenses (including, without limitation,
reasonable attorney's fees, charges and disbursements) incurred by the Purchaser
as a result of any inaccuracy in or breach of the representations, warranties or
covenants made by the Company herein. The Purchaser agrees to indemnify and hold
harmless the Company and its directors, officers, affiliates, agents, successors
and assigns from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable attorneys
fees, charges and disbursements) incurred by the Company as result of any
inaccuracy in or breach of the representations, warranties or covenants made by
the Purchaser herein.
Section 9.2 Indemnification Procedure. Any party entitled to
indemnification under this Article IX (an "indemnified party") will give written
notice to the indemnifying party of any matters giving rise to a claim for
indemnification; provided, that the failure of any party entitled to
indemnification hereunder to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Article IX except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any action, proceeding or claim is brought against an
indemnified party in respect of which indemnification is sought hereunder, the
indemnifying party shall be entitled to participate in and, unless in the
reasonable judgment of counsel to the indemnified party a conflict of interest
between it and the indemnifying party may exist with respect of such action,
proceeding or claim, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. In the event that the indemnifying party
advises an indemnified party that it will contest such a claim for
indemnification hereunder, or fails, within thirty (30) days of receipt of any
indemnification notice to notify, in writing, such person of its election to
defend, settle or compromise, at its sole cost and expense, any action,
proceeding or claim (or discontinues its defense at any time after it commences
such defense), then the indemnified party may, at its option, defend, settle or
otherwise compromise or pay such action or claim. In any event, unless and until
the indemnifying party elects in writing to assume and does so assume the
defense of any such claim, proceeding or action, the indemnified party's costs
and expenses arising out of the defense, settlement or compromise of any such
action, claim or proceeding shall be losses subject to indemnification
hereunder. The indemnified party shall cooperate fully with the indemnifying
party in connection with any settlement negotiations or defense of any such
action or claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the indemnified party which
relates to such action or claim. The indemnifying party shall keep the
indemnified party fully apprised at all times as to the status of the defense or
any settlement negotiations with respect thereto. If the indemnifying party
elects to defend any such action or claim, then the indemnified party shall be
entitled to participate in such defense with counsel of its choice at its sole
cost and expense. The indemnifying party shall not be liable for any settlement
of any action, claim or proceeding effected without its prior written consent.
Notwithstanding anything in this Article IX to the contrary, the indemnifying
party shall
13
not, without the indemnified party's prior written consent, settle or compromise
any claim or consent to entry of any judgment in respect thereof which imposes
any future obligation on the indemnified party or which does not include, as an
unconditional term thereof, the giving by the claimant or the plaintiff to the
indemnified party of a release from all liability in respect of such claim. The
indemnification required by this Article IX shall be made by periodic payments
of the amount thereof during the course of investigation or defense, as and when
bills are received or expense, loss, damage or liability is incurred, so long as
the indemnified party irrevocably agrees to refund such moneys if it is
ultimately determined by a court of competent jurisdiction that such party was
not entitled to indemnification. The indemnity agreements contained herein shall
be in addition to (a) any cause of action or similar rights of the indemnified
party against the indemnifying party or others, and (b) any liabilities the
indemnifying party may be subject to.
ARTICLE X
ASSIGNMENT
Section 10.1 Assignment. Neither this Agreement nor any rights of the
Purchaser or the Company hereunder may be assigned by either party to any other
person.
ARTICLE XI
NOTICES
Section 11.1 Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) hand delivered, (ii)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by facsimile, addressed as set forth below or to
such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be given
hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the first business day following the date of sending by reputable
courier service, fully prepaid, addressed to such address, or (c) upon actual
receipt of such mailing, if mailed. The addresses for such communications shall
be:
If to the Company: Nymox Pharmaceutical Corporation
0000 Xxxxxxxxx Xxxx.
Xx. Xxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Telephone Number: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxx,
President
14
with a copy to (shall not constitute notice):
Stikeman Elliott
0000 Xxxx-Xxxxxxxx Xxxx. W.
40th Floor
Montreal, Quebec
Canada H3B 3V2
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Investor: As set forth on the signature pages
hereto
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 11.1 by giving written notice of such changed
address or facsimile number to the other party hereto as provided in this
Section 11.1.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Fees and Expenses. The Company shall pay all fees and expenses
related to the transactions contemplated by this Agreement; provided, that the
Company shall pay, at the Closing of the Agreement, all attorneys fees and
expenses (exclusive of disbursements and out-of-pocket expenses) incurred by the
Purchaser in connection with the preparation, negotiation, execution and
delivery of this Agreement and the transactions contemplated hereunder. In
addition, the Company shall pay all reasonable fees and expenses incurred by the
Purchaser in connection with any amendments, modifications or waivers of this
Agreement or incurred in connection with the enforcement of this Agreement,
including, without limitation, all reasonable attorneys' fees and expenses. The
Company shall pay all stamp or other similar taxes and duties levied in
connection with issuance of the Shares pursuant hereto.
Section 12.2 Specific Enforcement, Consent to Jurisdiction.
(a) Injunctive Relief The Company and the Purchaser acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof or thereof, this being in addition to any other remedy to
which any of them may be entitled by law or equity.
(b) Governing Law This Agreement shall be governed by and construed in
accordance with the laws of Canada applicable to contracts made in Quebec by
persons domiciled in Montreal and without regard to its principles of conflicts
of laws.
(c) Jurisdiction Each of the Company and the Purchaser (i) hereby
irrevocably submits to the jurisdiction of the Quebec Superior Court and other
courts of the Province of Quebec sitting in the District of Montreal for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Purchaser consents to process being served
in any such suit, action or proceeding by mailing a copy thereof by certified
mail, return receipt requested, to such party at the address in effect for
notices to it under this
15
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section shall affect or
limit any right to serve process in any other manner permitted by law.
Section 12.3 Entire Agreement; Amendment. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and, except as specifically set forth herein, neither the Company nor the
Purchaser makes any representations, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by a written instrument signed by the party against whom enforcement
of any such amendment or waiver is sought.
Section 12.4 Waivers. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provisions,
condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
Section 12.5 Headings. The article, section and subsection headings in this
Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 12.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns. The
parties hereto may not amend this Agreement or any rights or obligations
hereunder without the prior written consent of the Company and each Purchaser to
be affected by the amendment. After Closing, the assignment by a party to this
Agreement of any rights hereunder shall not affect the obligations of such party
under this Agreement.
Section 12.7 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 12.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. Execution may be made by delivery by
facsimile.
Section 12.9 Publicity. Prior to the Closing, neither the Company nor the
Purchaser shall issue any press release or otherwise make any public statement
or announcement with respect to this Agreement or the transactions contemplated
hereby or the existence of this Agreement. After the Closing, the Company may
issue a press release or otherwise make a public statement or announcement with
respect to this Agreement or the transactions contemplated hereby or the
existence of this Agreement; provided, that prior to issuing any such press
release, making any such public statement or announcement, the Company obtains
the prior consent of the Purchaser, which consent shall not be unreasonably
withheld or delayed.
Section 12.10 Severability. The provisions of this Agreement are severable
and, in the event that any court of competent jurisdiction shall determine that
any one or more of the provisions or part of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Agreement and this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
Section 12.11 Further Assurances. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, each of the Company
and the Purchaser shall execute and deliver such
16
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
Section 12.12 Currencies. Unless otherwise specified, all references herein
to dollars means United States dollars.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorize officer as of the date first above
written.
NYMOX PHARMACEUTICAL CORPORATION
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------------
Name: Xx. Xxxx Xxxxxxxx
Title: President
LORROS-GREYSE INVESTMENTS, LTD.
By: /s/
-------------------------------------------------
Name:
-------------------------------------------------
Title:
-------------------------------------------------
18
EXHIBIT E
---------
TREASURY DIRECTIVE
------------------
TO: COMPUTERSHARE INVESTOR SERVICES
RE: ISSUANCE OF _____________________ COMMON SHARES OF
NYMOX PHARMACEUTICAL CORPORATION
________________________________________________________________________________
By resolution adopted by the Board of Directors of Nymox Pharmaceutical
Corporation (the "Company") dated ____________, you are hereby authorized to
issue _______________ common shares (the "Shares") in consideration for
$_____________ (US) received on ________________from Lorros-Greyse Investments,
Ltd. (the "Investor") and in accordance with the Common Stock Private Purchase
Agreement between the Investor and the Company. These shares are fully paid and
non-assessable. As transfer agent and registrar for the Company, we request that
you issue a certificate for the shares in question as follows:
Lorros-Greyse Investments, Ltd.
_______________________________
_______________________________
We have received a legal opinion that in order to permit the Company to comply
with the requirements of the United States Securities Act of 1933, before the
certificate for the Shares is issued to the Investor, the following legend
should be typed on the certificate:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY REGULATION
S AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR
OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH
REGISTRATION.
Please deliver the certificate to:
Nymox Pharmaceutical Corporation
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xx. Xxxxxxx, XX X0X 0X0
Attn: Xxx Xxxxxx, C.F.O.
Signed this _____ day of _______________, 2003
NYMOX PHARMACEUTICAL CORPORATION
By: /s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx
Secretary-Treasurer
