EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this 5th day of March, 1997, between
CYPROS PHARMACEUTICAL CORPORATION, NASDAQ Symbol ("CYPR")
(the "Company"), a California corporation, with its principal
office at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000, and the
PRESIDENT AND FELLOWS OF HARVARD COLLEGE (the "Purchaser"), c/o
Harvard Management Company, Inc. with its principal office at
000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and the Purchaser agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement:
"Closing" means the execution and delivery of the Share
Certificate, the delivery of a final prospectus for the Common
Stock (as that term is defined below) and the receipt of the
wire transfer on the Closing Date.
"Closing Date" means the date agreed to by the parties for the
Closing.
"Common Stock" means the Common Stock of the Company, no par
value.
"Share Certificate" means the duly executed certificate
representing the number of shares of Common Stock being
purchased by the Purchaser hereunder.
Section 2. Authorization and Execution of Agreement.
2.1 Authorization. Subject to the terms and conditions
of this Agreement, the Company has authorized (i) the execution
and delivery to the Purchaser's counsel, Ropes & Xxxx, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, of this
Agreement and the delivery of the opinion of Xxxxxx Godward
LLP, counsel to the Company, in the form attached hereto as
Exhibit A, covering the matters set forth in Sections 3.1, 3.2,
3.3, and 3.8, and (ii) the execution and delivery on the
Closing Date of one or more Share Certificates representing
1,000,000 shares of Common Stock, along with a copy of the
final prospectus relating to resale of the Common Stock.
2.2 Agreement to Purchase the Common Stock. On the
Closing Date, subject to the terms and conditions of this
Agreement, the Company will issue and sell to the Purchaser,
and, in reliance upon the representations and warranties of the
Company contained in this Agreement, the Purchaser will
purchase from the Company 1,000,000 shares of Common Stock in
exchange for $4,645,000.
2.3 Closing. The Closing shall be held as soon as
possible following the date that the Securities and Exchange
Commission has declared effective the registration statement
required to be filed by the Company pursuant to Section 7 of
this Agreement.
2.4 Payment and Delivery. The Closing shall take place
at the offices of the Purchaser's counsel. At the Closing, the
following shall occur:
(a) Purchaser shall remit by wire transfer $4,645,000 to the
Company pursuant to wire transfer instructions to be delivered
by the Company to the Purchaser at least one day prior to the
Closing.
(b) The Company shall deliver the Share Certificate(s) and the
final prospectus relating to the Registrable Shares (as that
term is defined in Section 7 below).
2.5 Termination of Agreement. If the closing has not
occurred within 60 days of the date hereof, then the Purchaser
may terminate this Agreement immediately by a written notice to
that effect to the Company. In the alternative, the Purchaser
may proceed with the closing, in which case the Company will
continue to use its best efforts to have the SEC declare the
registration statement effective. In the event of termination,
neither party shall have any further responsibility or
liability to the other party.
Section 3. General Representations and Warranties of the
Company. The Company hereby represents and warrants to, and
covenants with, the Purchaser that the following are true and
correct as of the date hereof and as of the Closing Date.
3.1 Organization; Qualification. The Company is a
corporation duly organized and validly existing under the laws
of the State of California and is in good standing under such
laws. The Company has all requisite corporate power and
authority to own, lease and operate its properties and assets,
and to carry on its business as presently conducted. The
Company is qualified to do business as a foreign corporation in
each jurisdiction in which the ownership of its property or the
nature of its business requires such qualification, except
where failure to so qualify would not have a material adverse
effect on the Company.
3.2 Capitalization. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock, no par
value, of which 11,857,171 shares are issued and outstanding,
and 1,000,000 shares of Convertible Preferred Stock, none of
which are issued and outstanding. All issued and outstanding
shares of Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable. The Company has
reserved sufficient shares of Common Stock for issuance under
this Agreement.
3.3 Authorization. The Company has all corporate right,
power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. All corporate
action on the part of the Company, its directors and
stockholders necessary for the authorization, execution,
delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Common Stock
and the performance of the Company's obligations hereunder has
been taken. This Agreement has been duly executed and delivered
by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its
terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of
law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy as they
may apply to the indemnification provisions set forth in
Section 7.3 of this Agreement. Upon issuance and delivery of
the Share Certificate, the Common Stock so issued will be
validly issued, fully paid and nonassessable and will be free
of any liens or encumbrances. The execution and delivery of
this Agreement, and the issuance of the Share Certificate will
not give rise to any preemptive right or right of first refusal
or right of participation on behalf of any person.
3.4 No Conflict. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any
violation of or default (with or without notice or lapse of
time, or both), or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of
a material benefit, under, any provision of the Restated
Articles of Incorporation, as amended, or Bylaws of the Company
or any material mortgage, indenture, lease or other agreement
or
instrument, permit, concession, franchise, license, judgment,
order, decree statute, law, ordinance, rule or regulation
applicable to the Company, its properties or assets.
3.5 Accuracy of Reports and Information. The Company's
Common Stock is registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"). All reports required to be filed by the Company with the
Securities and Exchange Commission ("SEC") during the period
from August 1, 1996 to the date of this Agreement pursuant to
Section 13 (a) or 15 (d) of the Exchange Act, including the
Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1996 (the "Form 10-K"), have been duly and timely
filed, were in compliance with the requirements of their
respective forms, were complete and correct in all material
respects as of the dates at which the information was furnished
and do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
made therein, in the light of the circumstances under which
they were made, not misleading. Copies of the Form 10-K and the
Form 10-Qs required to be filed by the Company with the SEC
during the period from August 1, 1996 to the date of this
Agreement pursuant to Section 13(a) or 15(d) of the Exchange
Act (the "SEC Reports") have been furnished to the Purchaser.
The Company is an issuer eligible to use Form S-3 under the
Securities Act of 1933 (the "Securities Act") for the
registration of the resale of the Registrable Shares (as that
term is defined below in Section 7.1 (c)).
3.6 Financial Statements and Changes. The audited
financial statements of the Company contained in the Form 10-K,
and the unaudited financial statements contained in the
Company's Form 10-Q for the period ended October 31, 1996,
including the notes relating thereto (the "Financial
Statements") have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods covered by such statements (except for
normal year end audit adjustments in the case of the unaudited
financials) and present fairly the Company's financial
condition and results of operations and cash flows as of the
respective dates and for the periods indicated. Since October
31, 1996, there has not been any change in the assets,
liabilities, financial condition or operations of the Company
from that reflected in the Financial Statements except changes
in the ordinary course of business which have not been, either
in any individual case or in the aggregate, materially adverse,
except for the acquisition of the Ethamolin product line, which
has been disclosed by the Company on Form 8-K.
3.7 Absence of Undisclosed Liabilities. The Company has
no material liabilities or obligations, absolute or contingent
(individually or in the aggregate), except as set forth in the
Financial Statements or as incurred in the ordinary course of
business after the date of the Financial Statements.
3.8 Governmental Consent, etc. No consent, approval or
authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required
in connection with the valid execution and delivery of this
Agreement, or the consummation of any other transaction
contemplated hereby, except the filing with the SEC of a
registration statement on Form S-3 for the purpose of
registering the Common Stock and the filing of a Form D with
the SEC.
3.9 Intellectual Property Rights. Except as disclosed in
the Form 10-K, the Company has sufficient trademarks, trade
names, patent rights, copyrights and licenses to conduct its
business as contemplated in the Form 10-K. To the Company's
knowledge, neither the Company nor its products is infringing
or will infringe any trademark, trade name, patent right,
copyright, license, trade secret or other similar right of
others currently in existence; and there is no claim being made
against the Company regarding any trademark, trade name,
patent, copyright, license, trade secret or other intellectual
property right which could have a material adverse effect on
the condition (financial or otherwise), business, results of
operations or prospects of the Company.
3.10 Material Contracts. Except as set forth in the Form
10K, the agreements to which the Company is a party described in
the Form 10-K are valid agreements, in full force and effect,
the Company is not in material breach or material default (with
or without notice or lapse of time, or both) under any of such
agreements, and, to the Company's knowledge, the other
contracting party or parties thereto are not in material breach
or material default (with or without notice or lapse of time, or
both) under any of such agreements.
3.11 Litigation. There is no action, proceeding or
investigation pending, or to the Company's knowledge threatened,
against the Company which might result, either individually or
in the aggregate, in any material adverse change in the
business, prospects, conditions, affairs or operations of the
Company. The Company is not a party to or subject to the
provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality. There is no
action, suit, proceeding or investigation by the Company
currently pending or which the Company currently intends to
initiate.
3.12 Title to Assets. Except as set forth in Form 10-K,
the Company has good and marketable title to all properties and
material assets described in the Form 10-K as owned by it, free
and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest other than such as are not material
to the business of the Company.
3.13 Subsidiaries. The Company does not presently own or
control, directly or indirectly, any interest in any other
corporation, partnership, association or other business entity.
3.14 Required Governmental Permits. The Company is in
possession of and operating in compliance with all
authorizations, licenses, certificates, consents, orders and
permits from state, federal and other regulatory authorities
which are material to the conduct of its business, all of which
are valid and in full force and effect.
3.15 Securities Act Exemption. Assuming and relying in
part on the truth and accuracy of Purchaser's representations
and warranties in Section 4 of this Agreement, the offer, sale
and issuance of the Common Stock is exempt from registration
under the Securities Act of 1933, as amended.
Section 4. Representations, Warranties and Covenants of the
Purchaser. The Purchaser represents and warrants to, and
covenants with, the Company that the following are true and
correct as of the date hereof and as of the Closing Date.
4.1 Authority. Purchaser has full right, power, authority
and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a
legal, valid and binding obligation of the Purchaser enforceable
in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies, and to
limitations of public policy as they may apply to the
indemnification provisions set forth in Section 7.3 of this
Agreement.
4.2 Investment Experience. Purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act.
Purchaser is aware of the Company's business affairs and
financial condition and has had access to and has acquired
sufficient information about the Company, including the SEC
Reports, to reach an informed and knowledgeable decision to
purchase the Common Stock. Purchaser has substantial experience
in evaluating and investing in private placement transactions of
securities in companies similar to the Company so Purchaser is
capable of evaluating the merits and risks of an investment in
the Company and has the capacity to protect its own interests in
connection with the purchase of the Common Stock.
4.3 Investment Intent. Without limiting its ability to
resell the Common Stock pursuant to an effective registration
statement, Purchaser represents that it is purchasing the Common
Stock for its own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any
distribution thereof. Purchaser understands that its
acquisition of the Common Stock has not been registered under
the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, or registered or
qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among
other things, the bona fide nature of Purchaser's investment
intent and the accuracy of Purchaser's representations as
expressed herein. Purchaser will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or
solicit any offers to buy, purchaser or otherwise acquire or
take a pledge of) the Common Stock or any part thereof of except
in compliance with the Securities Act and any applicable state
securities laws, and the rules and regulations promulgated
thereunder.
4.4 Registration or Exemption Requirements. Purchaser
further acknowledges and understands that the Common Stock may
not be resold or otherwise transferred except in a transaction
registered under the Securities Act and any applicable state
securities laws or unless an exemption from such registration is
available. Purchaser understands that the Share Certificate
will be imprinted with a legend that prohibits the assignment of
the Share Certificate unless (i) it is registered or such
registration is not required, and (ii) if the transfer is
pursuant to an exemption from registration other than Rule 144
under the Securities Act and, if the Company shall so request in
writing, an opinion of Ropes & Xxxx or other counsel reasonably
satisfactory to the Company is obtained to the effect that the
transaction is so exempt.
4.5 No Legal, Tax or Investment Advice. Purchaser
understands that nothing in this Agreement or any other
materials presented to Purchaser in connection with the purchase
of the Common Stock constitutes legal, tax or investment advice.
Purchaser has consulted such legal, tax and investment advisors
as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Common Stock.
4.6 Purchaser Review. Purchaser hereby represents and
warrants that it has carefully examined the SEC Reports,
including the Form 10-K and the financial statements contained
therein and acknowledges that the Company has made available to
it all documents and information that it has requested relating
to the Company and has provided answers to all of its questions
concerning the Company and the Common Stock. Nothing stated in
the previous two sentences, however, shall be deemed to affect
the representations and warranties of the Company contained in
this Agreement.
Section 5. Conditions to Obligations of Purchaser at Closing
Date. The obligation of the Purchaser to purchase the Common
Stock is subject to the fulfillment on or prior to the Closing
Date of the following conditions, any or all of which may be
waived in writing at the option of the Purchaser:
5.1 Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or
prior to such Closing Date, including the filing of the
registration statement and the acceleration request, shall have
been performed or complied with in all material respects.
5.2 No Order Pending. There shall not then be in effect
any order enjoining or restraining the transactions contemplated
by this Agreement.
5.3 No Law Prohibiting or Restricting Such Sale. There
shall not be in effect any law, rule or regulation prohibiting
or restricting such sale, or requiring any consent or approval
of any person which shall not have been obtained to issue the
Share Certificate (except as otherwise provided in this
Agreement).
5.4 Effectiveness of Registration Statement. The
registration statement filed by the Company pursuant to Section
7.2 shall have become effective, and no stop order suspending
the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the SEC.
Section 6. Conditions to Obligations of Company. The Company's
obligation to execute and deliver the Share Certificate at the
Closing is subject to the fulfillment on or prior to the Closing
Date of the following conditions, any or all of which may be
waived in writing at the option of the Company:
6.1 Representations and Warranties Correct. The
representations and warranties made by the Purchaser in Section
4 hereof shall be true and correct when made, and shall be true
and correct in all material respects on the Closing Date with
the same force and effect as if they had been made on and as of
said date.
6.2 Effectiveness of Registration Statement. The
registration statement filed by the Company pursuant to Section
7.2 shall have become effective, and no stop order suspending
the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the SEC.
Section 7. Registration of the Shares; Compliance with the
Securities Act.
7.1 Definitions. For the purpose of this Section 7:
(a) the term "Registration Statement" shall mean any
registration statement required to be filed by Section 7.2
below, and shall include any preliminary prospectus, final
prospectus, exhibit or amendment included in or relating to such
registration statement; and
(b) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or
alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) the term "Registrable Shares" shall mean the shares of
Common Stock issued pursuant to this Agreement.
7.2 Registration Procedures and Expenses. The Company
shall as soon as possible after the date hereof:
(a) file with the SEC an S-3 registration statement under the
Securities Act (providing for shelf registration of the Common
Stock under SEC Rule 415) on a form which is appropriate to
register all of the Registrable Shares;
(b) use its best efforts, subject to receipt of necessary
information from the Purchaser, to cause such Registration
Statement to become effective as promptly after filing as
practicable;
(c) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such
Registration Statement effective until termination of such
obligation as provided in Section 7.9 below;
(d) furnish to the Purchaser (and to each underwriter, if any,
of such Common Stock) such number of copies of prospectuses in
conformity with the requirements of the Securities Act and such
other documents as the Purchaser may reasonably request, in
order to facilitate the public sale or other disposition of all
or any of the Registrable Shares by the Purchaser;
(e) file such documents as may be required of the Company for
normal securities law clearance for the resale of the
Registrable Shares in which states of the United States as may
be reasonably requested by the Purchaser provided, however, that
the Company shall not be required in connection with this
paragraph (e) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction;
(f) advise the Purchaser promptly:
(i) of any request by the SEC for amendments to the
Registration Statement or amendments to the prospectus or for
additional information relating thereto:
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of
the qualification of the Registrable Shares for offering or sale
in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes; and
(iii) of the existence of any fact and the happening of any
event that makes any statement of a material fact made in the
Registration Statement, the prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Registration Statement or the prospectus in
order to make the statements therein not misleading;
(g) in connection with the filing of any document that is to be
incorported by reference into the Registration Statement or the
prospectus (after the initial filing) of the Registration
Statement):
(i) use its best efforts to provide copies of such document to
the Purchaser prior to such filing and in any event no later
than concurrently with such filing; and
(ii) make the Company's representative available for discussion
of such document;
(h) use its best efforts to cause all Registrable Shares to be
listed on each securities exchange, if any, on which equity
securities by the Company are then listed; and
(i) bear all expenses in connection with the procedures in
paragraphs (a) through (h) of this Section 7.2 and the
registration of the Registrable Shares on such Registration
Statement and the satisfaction of the blue sky laws of such
states, including NASD fees, listing fees, printing expenses,
accountant's fees, and the reasonable fees and expenses of legal
counsel to the Purchaser in connection with the procedures in
paragraph (a) through (h) of this Section 7.2 and other than
underwriting discounts and selling commissions.
7.3 Indemnification.
(a) The Company agrees to indemnify and hold harmless Purchaser
(and each of its officers, directors, partners or persons, if
any, who controls such Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) from
and against any losses, claims, damages or liabilities to which
such Purchaser (and each of officers, directors, partners or
persons, if any, who controls such Purchaser within the meaning
of Section 15 of the Securities Act or Section 20 of the
Exchange Act) may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise
out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each
case on the effective date thereof, or arise out of any failure
by the Company to fulfill any undertaking included in the
Registration Statement, and the Company will, as incurred,
reimburse such Purchaser (and each of its officers, directors,
partners or persons, if any, who controls such Purchaser within
the meaning of Section 15 of the Securities Act) for any legal
or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or
claim; provided, however, that the Company shall not be liable
in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement
or omission or alleged untrue statement or omission made in such
Registration Statement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
such Purchaser specifically for use in preparation of the
Registration Statement.
(b) The Purchaser agrees to indemnify and hold harmless the
Company (and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each officer of the Company who
signs the Registration Statement and each director of the
Company), from and against any losses, claims, damages or
liabilities to which the Company (or any such officer, director
or controlling person) may become subject (under the Securities
Act or otherwise),insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any untrue statement of a
material fact contained in the Registration Statement or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in each case, on the effective date thereof,
if, and to the extent,such untrue statement was made in reliance
upon and inconformity with written information furnished by or
on behalf of such Purchaser specifically for use in preparation of the
Registration Statement, and such Purchaser will, as incurred,
reimburse the Company (and each of its officers, directors or
controlling persons) for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any
such action, proceeding or claim.
(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of
which indemnity is to be sought against an indemnifying person
pursuant to this Section 7.3, such indemnified person shall
notify the indemnifying person in writing of such claim or of
the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall
have been notified thereof, such indemnifying person shall be
entitled to participate therein, and, to the extent that it
shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person
shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if
there exists or shall exist a conflict of interest that would
make it inappropriate in the reasonable judgment of the
indemnified person for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate
or associate thereof, the indemnified person shall he entitled
to retain its own counsel at the expense of such indemnifying
person. The indemnifying party shall not settle an action
without the consent of the indemnified party, which shall not be
unreasonably withheld.
(d) If after proper notice of a claim or the commencement of an
action against the indemnified party, the indemnifying party
does not choose to participate, then the indemnified party shall
defend itself at its own cost and expense until there is an
adjudication at which point the indemnifying party shall then
reimburse the indemnified party for its costs and expenses
unless the indemnified party was found to have made an untrue
statement which gives rise to or is the basis of losses, claims,
damages or liabilities awarded in the adjudication.
(e) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or
liabilities referred to above, then each applicable indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities.
7.4 Information Available. So long as any registration
statement is effective covering the resale of the Registrable
Shares, the Company will furnish to Purchaser:
(a) as soon as possible after available (but in the case of the
Company's Annual Report to Stockholders, within 150 days after
the end of each fiscal year of the Company), one copy of its
Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally
accepted accounting principles in the United States of America
by a national firm of certified public accountants); (ii) if not
included in substance in the Annual Report to Stockholders, its
Annual Report on Form 10-K within 100 days after the end of each
fiscal year of the Company, (iii) its quarterly report on Form
10Q, and (iv) a full copy of the registration statement covering
the Common Stock (the foregoing, in each case, excluding
exhibits); and
(b) upon the reasonable request of Purchaser, such other
information that is generally available to the public.
7.5 Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the SEC which
may at any time permit the sale of the Common Stock to the
public without registration, the Company agrees to use its best
efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act,
at all times;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act;
(c) to furnish to Purchaser forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of said Rule 144, and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of
the Company and other information in the possession of or
reasonably obtainable by the Company as Purchaser may reasonably
request in availing itself of any rule or regulation of the SEC
allowing Purchaser to sell any such Common Stock without
registration.
7.6 Temporary Cessation of Offers and Sales by Purchaser.
The Purchaser acknowledges that there may occasionally be times
when the Company may be required to suspend the use of the
prospectus forming part of the Registration Statement until such
time as an amendment to the Registration Statement has been
filed by the Company and declared effective by the Commission,
until the prospectus is supplemented or amended to comply with
the Securities Act, or until such time as the Company has filed
an appropriate report with the Commission pursuant to the
Exchange Act. The Company agrees to file any necessary
amendments, supplements and reports as soon as practicable under
the circumstances. Purchaser hereby covenants that it will not
sell any Common Stock pursuant to said prospectus during a
period of not more than 30 days commencing at the time at which
the Company gives the Purchaser notice of the suspension of the
use of said prospectus and ending at the time the Company gives
the Purchaser notice that the Purchaser may thereafter effect
sales pursuant to said prospectus, as the same may have been
supplemented or amended. The Company agrees to use all
reasonable efforts to minimize the duration and frequency of
such periods.
7.7 Prospectus Delivery. Purchaser hereby covenants with
the Company to comply with the prospectus delivery requirements
in connection with the resale of the Registrable Shares.
7.8 Termination of Obligations. The obligations of the
Company pursuant to Sections 7.2, 7.4 and 7.5 hereof shall
cease and terminate upon the earlier to occur of (i) such time
as all of the Registrable Shares have been re-sold, or (ii)
such time as all of the Registrable Shares may be re-sold
pursuant to Rule 144(k).
Section 8. Legal Fees and Expenses. Except as provided in
Section 7.2 (i), each of the parties shall pay its own fees and
expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with
this Agreement and the transactions contemplated hereby.
Section 9. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be
telecopied or mailed by first class registered or certified
airmail (return receipt requested), postage prepaid, and shall
be deemed given when so telecopied or, if mailed, when
received:
(a) if to the Company, to
Cypros Pharmaceutical Corporation
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopier No.: 619/929-8038
or to such other person at such other place as the Company
shall designate to the Purchaser in writing;
(b) if to the Purchaser, to
President and Fellows of Harvard College
c/o Harvard Management Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxx
Telecopier No.: 617/523-1283
or at such other address or addresses as may have been furnished
to the Company in writing; or
(c) if to any transferee or transferees of the Purchaser, at
such address or addresses as shall have been furnished to the
Company at the time of the transfer or transfers, or at such
other address or addresses as may have been furnished by such
transferee or transferees to the Company in writing.
Section 10. Miscellaneous.
10.1 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersedes all prior
oral or written agreements and understandings relating to the
subject matter hereof. No statement, representation, warranty,
covenant or agreement or any kind not expressly set forth in this
Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
10.2 Amendments. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the
Company and by Purchaser.
10.3 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed to be part of this Agreement.
10.4 Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
10.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts.
10.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original,
but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered
to the other party.
10.7 Publicity. Neither party shall issue any press
releases or otherwise make any public statement with respect to
the transactions contemplated by this Agreement without the prior
written consent of the other party, except as may be required by
applicable law or regulation.
10.8 Survival. The representations and warranties in this
Agreement shall survive Closing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their duly authorized representatives the day and
year first above written.
CYPROS PHARMACEUTICAL
CORPORATION
(Signature)
By Xxxxx X. Xxxxxx
Its Chief Financial Officer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By HARVARD MANAGEMENT COMPANY, INC.
(Signature)
By Xxxx X. Xxxxx
Its President
