Registration Rights Agreement
Final
Copy
This
Registration Rights Agreement (the “Agreement”)
is
made as of the date set forth below between Symbollon Pharmaceuticals, Inc.,
a
Delaware corporation (the “Company”)
and
the investors identified on the signature page hereto (“Holders”).
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Securities Purchase Agreement dated as of the date
hereof by and between the Company and the Holders (the “Purchase
Agreement”).
RECITALS
WHEREAS,
subject to the terms and conditions of the Purchase Agreement, the Company
has
sold and issued to the Holders and the Holders have purchased from the Company
1,000,000 shares (the “Shares”)
of the
common stock of the Company, $0.001 par value per share (the “Common
Stock”)
and
warrants (the “Warrants”)
to
purchase up to 1,000,000 shares of Common Stock (the “Warrant
Shares”
and
together with the Common Stock and Warrants, the “Securities”),
to
the Holders in a private placement (the “Offering”).
NOW,
THEREFORE, the parties hereto agree as follows:
1. Registration
Procedures and Expenses.
The
Company shall:
(a) subject
to receipt of reasonably necessary information from the holder or holders as
the
case may be, from time to time, of the Registrable Securities (as defined below)
(the “Holder” or “Holders”), prepare and file with the Securities and Exchange
Commission (“SEC”),
within sixty (60) days after the Closing Date (the “Required
Filing Date”),
a
Registration Statement on Form SB-2 (except if the Company is not then eligible
to register on Form SB-2, in which case such registration shall be on another
appropriate form in accordance herewith) (collectively, together with any
registration statement filed pursuant to clause (b) below, the “Registration
Statements”)
to
enable the resale by the Holders from time to time of (x) the Shares issuable,
(y) the Warrant Shares issuable and (z) the shares of Common Stock issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing (collectively, the “Registrable
Securities”);
(b) use
its
best efforts, subject to receipt of necessary information from each Holder,
to
cause each Registration Statement to become effective as soon as practicable,
but in no event later than one hundred twenty (120) days after the applicable
Required Filing Date;
(c) use
its
best efforts to prepare and file with the SEC such amendments and supplements
to
the Registration Statements and the Prospectus as may be necessary to keep
each
Registration Statement current and effective for a period ending on the earlier
of (1) the second anniversary of the Closing, (2) the date on which the Holders
may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under
the
Securities Act or any successor rule (“Rule
144”)
or (3)
such time as all Registrable Securities purchased by such Holder in the Offering
have been sold pursuant to a registration statement or Rule 144 (the
“Effectiveness
Period”),
and
to notify each Holder promptly upon each Registration Statement and each
post-effective amendment thereto, being declared effective by the SEC;
(d) furnish
to any Holder such number of copies of the Registration Statements and
the
Prospectuses (including
supplemental prospectuses) as the Holder may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the Registrable
Securities by the Holder;
(e) file
documents required of the Company for normal blue sky clearance in states
specified in writing by any Holder; provided, however, that the Company shall
not be required to qualify to do business or consent to service of process
in
any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear
all
expenses (other than underwriting discounts and commissions, if any) in
connection with the procedures in paragraph (a) through (e) of this Section
1
and the registration of the Registrable Securities pursuant to the Registration
Statements;
(g) advise
the Holders, promptly after it shall receive notice or obtain knowledge of
the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of each Registration Statement or of the initiation of any proceeding for that
purpose; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal at the earliest
possible moment if such stop order should be issued; and
(h) with
a
view to making available to the Holders the benefits of Rule 144 and any other
rule or regulation of the SEC that may at any time permit the Holders to sell
Registrable Securities to the public without registration, the Company covenants
and agrees to use its commercially reasonable efforts to: (i) make and keep
public information available, as those terms are understood and defined in
Rule
144, until the earlier of (A) such date as all of the Holder’s Registrable
Securities may be resold pursuant to Rule 144(k) or any other rule of similar
effect or (B) such date as all of the Holders’ Registrable Securities shall have
been resold; (ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and under the
Exchange Act; and (iii) furnish to each Holder, (A) a written statement by
the Company that it has complied with the reporting requirements of the
Securities Act and the Exchange Act, (B) a copy of the Company’s most recent
Annual Report on Form 10-KSB or Quarterly Report on Form 10-QSB, and (C) such
other information as may be reasonably requested in order to avail the Holder
of
any rule or regulation of the SEC that permits the selling of any such
Registrable Securities without registration.
It
shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 1 that each Holder shall furnish to the Company a
completed Questionnaire in the form attached hereto as Exhibit
A.
The
Company understands that each Holder disclaims being an underwriter, but
acknowledges that a determination by the SEC that the Holder is deemed an
underwriter shall not relieve the Company of any obligations it has
hereunder.
2. Transfer
of Registrable Securities After Registration; Suspension.
(a) Each
Holder agrees that it will not effect any Disposition of the Securities that
would constitute a sale within the meaning of the Securities Act other than
in
transactions exempt from the registration requirements of the Securities Act
or
as contemplated in any Registration Statement and as described below, and that
it will promptly notify the Company of any material changes in the information
set forth in the Registration Statements regarding the Holder or its plan of
distribution.
2
(b) Except
in
the event that paragraph (c) below applies, the Company shall: (i) if deemed
necessary by the Company, prepare and file from time to time with the SEC a
post-effective amendment to each Registration Statement or a supplement to
the
related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, and so that, as thereafter delivered
to purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (ii) provide the Holders copies of any documents filed pursuant
to Section 2(b)(i); and (iii) upon request, inform each Holder who so requests
that the Company has complied with its obligations in Section 2(b)(i) (or that,
if the Company has filed a post-effective amendment to any Registration
Statement which has not yet been declared effective, the Company will notify
the
Holder to that effect, will use its best efforts to secure the effectiveness
of
such post-effective amendment as promptly as possible and will promptly notify
the Holder pursuant to Section 2(b)(i) hereof when the amendment has become
effective).
(c) Subject
to paragraph (d) below, in the event: (i) of any request by the SEC or any
other
federal or state governmental authority during the period of effectiveness
of
any Registration Statement for amendments or supplements to the Registration
Statement or related Prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of
any
stop order suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction or the initiation of any proceeding for such purpose; or (iv)
of any event or circumstance which necessitates the making of any changes in
any
Registration Statement or Prospectus, or any document incorporated or deemed
to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and that in the case of the Prospectus,
it
will not contain any untrue statement of a material fact or omit to state 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; then the Company shall promptly deliver a certificate in writing
to
the Holders (the “Suspension
Notice”)
to the
effect of the foregoing and, upon receipt of such Suspension Notice, the Holders
will refrain from selling any Registrable Securities pursuant to the
Registration Statement (a “Suspension”)
until
the Holders are advised in writing by the Company that the current Prospectus
may be used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in any such
Prospectus. In the event of any Suspension, the Company will use its reasonable
best efforts to cause the use of the Prospectus so suspended to be resumed
as
soon as reasonably practicable after delivery of a Suspension Notice to the
Holders. In addition to and without limiting any other remedies (including,
without limitation, at law or at equity) available to the Holders, the Holders
shall be entitled to specific performance in the event that the Company fails
to
comply with the provisions of this Section 2(c). The Holders covenant that
from
the date hereof they will maintain in confidence the receipt and content of
any
Suspension Notice provided in accordance with this paragraph (c) in
accordance with and subject to Section 4.6 of Annex I to the Securities Purchase
Agreement.
(d) Notwithstanding
the foregoing paragraphs of this Section 2, the Company shall use its
commercially reasonable efforts to ensure that any Suspension shall not exceed
thirty (30) days.
(e) If
a
Suspension is not then in effect, the Holders may sell Registrable Securities
under each Registration Statement, provided that they comply with any applicable
prospectus delivery requirements. Upon receipt of a request therefor, the
Company will provide an adequate number of current Prospectuses to each Holder
and to any other parties requiring such Prospectuses.
(f) In
the
event of a sale of Registrable Securities by a Holder, unless such requirement
is waived by the Company in writing, the Holder must also deliver to the
Company’s transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached hereto as Exhibit
A,
so that
the Registrable Securities may be properly transferred.
(g) The
Company agrees that it shall, immediately prior to each Registration Statement
being declared effective, deliver to its transfer agent an opinion letter of
counsel, opining that at any time the Registration Statement is effective,
the
transfer agent shall issue, in connection with the sale of the Registrable
Securities, certificates representing such Registrable Securities without
restrictive legend, provided the Registrable Securities are to be sold pursuant
to the Prospectus contained in the Registration Statement and the transfer
agent
receives a Certificate of Subsequent Sale in the form attached hereto as
Exhibit
B.
Upon
receipt of such opinion, the Company shall cause the transfer agent to confirm,
for the benefit of the Holder, that no further opinion of counsel is required
at
the time of transfer in order to issue such Registrable Securities without
restrictive legend.
The
Company shall cause
its
transfer agent to issue
a
certificate without any restrictive legend to a purchaser of any Registrable
Securities from the Holder, if (a) the sale of such Registrable Securities
is
registered under the applicable Registration Statement (including registration
pursuant to Rule 415 under the Securities Act) and a Holder has delivered a
Certificate of Subsequent Sale to the Transfer Agent; (b) the Holder has
provided the Company with an opinion of counsel, in form, substance and scope
customary for opinions of counsel in comparable transactions, to the effect
that
a public sale or transfer of such Registrable Securities may be made without
registration under the Securities Act; or (c) such Registrable Securities are
sold in compliance with Rule 144 under the Securities Act. In addition, the
Company shall, at the request of a Holder, remove the restrictive legend from
any Registrable Securities held by the Holder following the expiration of the
holding period required by Rule 144(k) under the Securities Act (or any
successor rule).
3. Indemnification.
For
the
purpose of this Section 3:
(a) the
term
“Selling
Shareholder”
shall
mean each Holder and each person, if any, who controls the Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act;
(b) the
term
“Registration
Statement”
shall
include any final Prospectus, exhibit, supplement or amendment included in
or
relating to, and any document incorporated by reference in, the applicable
Registration Statement (or deemed to be a part thereof) referred to in Section
1; and
(c) the
term
“untrue
statement”
shall
mean any untrue statement or alleged untrue statement, or any omission or
alleged omission to state in the applicable Registration Statement a material
fact required to be stated therein or necessary to make the statements therein,
not misleading.
(d) (i)The
Company agrees to indemnify and hold harmless each Selling Shareholder from
and
against any losses, claims, damages or liabilities to which such Selling
Shareholder 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 (i) any untrue statement of
a
material fact contained in any Registration Statement, (ii) any inaccuracy
in
the representations and warranties of the Company contained in the Agreement
or
the failure of the Company to perform its obligations hereunder or (iii) any
failure by the Company to fulfill any undertaking included in any Registration
Statement, and the Company will reimburse such Selling Shareholder for any
reasonable legal expense or other actual accountable out of pocket 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 made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Shareholder specifically for
use
in preparation of the applicable Registration Statement, or any inaccuracy
in
representations made by such Selling Shareholder in the Holder Questionnaire
or
the failure of such Selling Shareholder to comply with its covenants and
agreements contained in Sections 4.1, 4.2, 4.3, 4.4 of the Securities Purchase
Agreement or Section 2 hereof or any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the Selling
Shareholder prior to the pertinent sale or sales by the Selling
Shareholder.
4
(ii) Each
Holder 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, each officer of the Company who signs any 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, (i) any failure to comply
with
the covenants and agreements contained in Sections 4.1, 4.2, 4.3, 4.4 of the
Securities Purchase Agreement or Section 2 hereof, or (ii) any untrue statement
of a material fact contained in the Registration Statement if, and only if,
such
untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Holder specifically for use in
preparation of the Registration Statement, and the Holder will reimburse the
Company (or such officer, director or controlling person), as the case may
be,
for any reasonable legal expense or other actual accountable out-of-pocket
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim. The obligation to indemnify shall be
limited to the net amount of the proceeds received by a Holder from the sale
of
the Registrable Securities pursuant to the applicable Registration
Statement.
(iii) 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 3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the commencement
of such action, but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party under
this Section 3 (except to the extent that such omission materially and adversely
affects the indemnifying party’s ability to defend such action) or from any
liability otherwise than under this Section 3. Subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall elect by written notice delivered
to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled 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 (unless it has failed to assume the defense thereof and appoint
counsel reasonably satisfactory to the indemnified party), 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 opinion of counsel
to 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 be entitled to retain its own counsel
at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) for all indemnified parties.
In no event shall any indemnifying person be liable in respect of any amounts
paid in settlement of any action unless the indemnifying person shall have
approved the terms of such settlement; provided that such consent shall not
be
unreasonably withheld. No indemnifying person shall, without the prior written
consent of the indemnified person, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified person is or could
reasonably have been a party and indemnification could have been sought
hereunder by such indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all liability on claims
that are the subject matter of such proceeding.
5
(iv) If
the
indemnification provided for in this Section 3 is unavailable to or insufficient
to hold harmless an indemnified party under paragraphs 3(d)(i) or 3(d)(ii)
above
in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and a Holder on the other in connection
with the statements or omissions or other matters which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, in the case of an untrue statement, whether
the untrue statement relates to information supplied by the Company on the
one
hand or the Holder on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement. The Company and the Holder agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Holder shall not be required to contribute any amount in
excess of the amount by which the gross amount received by the Holder from
the
sale of the Registrable Securities to which such loss relates exceeds the amount
of any damages which the Holder has otherwise been required to pay by reason
of
such untrue statement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Holder’s obligations in this subsection to contribute
are several in proportion to their sales of Registrable Securities to which
such
loss relates and not joint.
The
parties to this Agreement hereby acknowledge that they are sophisticated
business persons who were represented by counsel during the negotiations
regarding the provisions hereof including, without limitation, the provisions
of
this Section 3, and are fully informed regarding said provisions. They further
acknowledge that the provisions of this Section 3 fairly allocate the risks
in
light of the ability of the parties to investigate the Company and its business
in order to assure that adequate disclosure is made in each Registration
Statement as required by the Securities Act and the Exchange Act.
4. Termination
of Conditions and Obligations. The
conditions precedent imposed by Section 4 of the Securities Purchase Agreement
or this Section 4 upon the transferability of the Registrable Securities shall
cease and terminate as to any particular number of the Registrable Securities
when such Registrable Securities shall have been effectively registered under
the Securities Act and sold or otherwise disposed of in accordance with the
intended method of disposition set forth in the Registration Statement covering
such Registrable Securities or at such time as an opinion of counsel
satisfactory to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the Securities Act.
6
5. Information
Available. So
long
as any Registration Statement is effective covering the resale of Registrable
Securities owned by a Holder, the Company will furnish (or, to the extent such
information is available electronically through the Company’s filings with the
SEC, the Company will make available) to the Holder:
(a) as
soon
as practicable after it is available, one copy of (i) its Annual Report to
Shareholders (which Annual Report shall contain financial statements audited
in
accordance with generally accepted accounting principles by an independent
registered public accounting firm, and (ii) if not included in substance in
the
Annual Report to Shareholders, its Annual Report on Form 10-KSB (the foregoing,
in each case, excluding exhibits);
(b) upon
the
reasonable request of the Holder, all exhibits excluded by the parenthetical
to
subsection (a)(ii) of this Section 5 as filed with the SEC and all other
information that is made available to shareholders; and
(c) upon
the
reasonable request of the Holder, an adequate number of copies of the
Prospectuses to supply to any other party requiring such Prospectuses; and
the
Company, upon the reasonable request of the Holder, will meet with the Holder
or
a representative thereof at the Company’s headquarters during the Company’s
normal business hours to discuss all information relevant for disclosure in
the
Registration Statement covering the Registrable Securities and will otherwise
reasonably cooperate with the Holder conducting an investigation for the purpose
of reducing or eliminating the Holder’s exposure to liability under the
Securities Act, including the reasonable production of information at the
Company’s headquarters; provided, that the Company shall not be required to
disclose any confidential information to or meet at its headquarters with the
Holder until and unless the Holder shall have entered into a confidentiality
agreement, in form and substance reasonably satisfactory to the Company, with
the Company with respect thereto.
6. Piggy-Back
Registrations.
(a) If
at any
time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other than on Form S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in
connection with the stock option or other employee benefit plans, then the
Company shall give prompt written notice to all Holders of Registrable
Securities of its intention to do so and of such Holders’ rights under this
Section 6. Upon the written request of any such Holder made within 15 days
after
the receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder), the Company will use
its
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register
by
the Holders thereof, to the extent requisite to permit the disposition of the
Registrable Securities to be so registered; provided
that (i)
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to proceed with the proposed registration of the securities to be sold
by
it, the Company may, at its election, give written notice of such determination
to each Holder of Registrable Securities and, thereupon, shall be relieved
of
its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the registration expenses
in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in
the
Company’s registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate
in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 6(a) involves an underwritten public offering, any Holder of
Registrable Securities requesting to be included in such registration may elect,
in writing prior to the effective date of the registration statement filed
in
connection with such registration, not to register such securities in connection
with such registration. The Company will pay all registration expenses in
connection with each registration of Registrable Securities.
7
(b) If
a
registration pursuant to this Section 6 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering, so as to be likely to have an
adverse effect on the price, timing or distribution of the securities offered
in
such offering as contemplated by the Company (other than the Registrable
Securities), then the Company will include in such registration (i) first,
100%
of the securities the Company proposes to sell and (ii) second, to the extent
of
the number of Registrable Securities requested to be included in such
registration pursuant to this Section 6 which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above,
the number of Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Registrable
Securities then held by each such Holder (provided that any shares thereby
allocated to any such Holder that exceed such Holder’s request will be
reallocated among the remaining requesting Holders in like manner).
7. Limits
on Additional Issuances.
Except
for the issuance of stock options under the Company’s stock option plans, the
issuance of common stock under
the
Company’s employee stock purchase plan or upon
exercise of outstanding options and warrants and the offering contemplated
hereby, the Company will not, for a period of six (6) months following the
Closing Date, offer for sale or sell any securities unless, in the opinion
of
the Company’s counsel, such offer or sale does not jeopardize the availability
of exemptions from the registration and qualification requirements under
applicable securities laws with respect to the Offering. The foregoing shall
not
apply to securities issued in connection with any acquisition, including by
way
of merger, or purchase of stock or all or substantially all of the assets of
any
third party. Except for the issuance of stock options under the Company’s stock
option plans, the issuance of common stock under
the
Company’s employee stock purchase plan or upon
exercise of outstanding options and warrants, the issuance of common stock
purchase warrants, and the offering contemplated hereby, the Company has not
engaged in any such offering during the six (6) months prior to the date of
this
agreement. The foregoing provisions shall not prevent the Company from filing
a
“shelf” registration statement pursuant to Rule 415 under the Securities Act,
but the foregoing provisions shall apply to any sale of securities
thereunder.
8. Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing, shall be delivered (A) if within the United States, by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if from outside the United
States, by International Federal Express (or comparable service) or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, upon the Business Day received, (ii) if delivered
by
nationally recognized overnight carrier, one (1) Business Day after timely
delivery to such carrier, (iii) if delivered by International Federal Express
(or comparable service), two (2) Business Days after timely delivery to such
carrier, (iv) if delivered by facsimile, upon electric confirmation of receipt
and shall be addressed as follows, or to such other address or addresses as
may
have been furnished in writing by a party to another party pursuant to this
paragraph:
8
(a) if
to the
Company, to:
Symbollon
Pharmaceuticals, Inc.
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attention: President
Telephone: (000)
000-0000
with
a
copy to:
Xxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx LLP
0000
Xxxxxxxx (00xx
Xxxxx)
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx, Esq.
Telephone: (000)
000-0000
(b) if
to a
Holder, at its address on the signature page to the Stock Purchase
Agreement.
9. Amendments;
Waiver. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and a majority in interest of the Holders. Any
waiver of a provision of this Agreement must be in writing and executed by
the
party against whom enforcement of such waiver is sought.
10. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. No party may assign this Agreement
or
any rights or obligations hereunder without the prior written consent of the
other; provided, however, that Holder may assign all or any of its rights and
obligations hereunder to any affiliate of Holder that is controlled, directly
or
indirectly, by Renaissance Capital Group, Inc. (any such assignment by the
Holder pursuant to the preceding proviso shall not, however, release or be
deemed to release the Holder from its obligations hereunder, and the Holder
shall remain liable for all such obligations).
11. 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.
12. Entire
Agreement; Severability. This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, negotiations and understandings between the parties,
both oral and written relating to the subject matter hereof. If any provision
contained in this Agreement is determined to 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.
13. Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Delaware, without giving effect to the principles of
conflicts of law.
14. 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
parties.
9
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as
of June 2, 2006 Renaissance
US Growth Investment Trust PLC
By:
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx, President
XXXX
Capital Group, Inc.,
Investment
Manager
Address:
c/o
RENN
Capital Group, Inc.
0000
X.
Xxxxxxx Xxxxxxxxxx
Xxxxx
000-XX 00
Xxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxxxxx
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X.
Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
10
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as
of June 2, 2006 BFS
US
Special Opportunities Trust PLC
By:
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx, President
XXXX
Capital Group, Inc.,
Investment
Adviser
Address:
c/o
RENN
Capital Group, Inc.
0000
X.
Xxxxxxx Xxxxxxxxxx
Xxxxx
000-XX 00
Xxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxxxxx
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X.
Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
10
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as
of June 2, 2006 Renaissance
Capital Growth & Income Fund III, Inc.
By:
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx, President
Address:
c/o
RENN
Capital Group, Inc.
0000
X.
Xxxxxxx Xxxxxxxxxx
Xxxxx
000-XX 00
Xxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxxxxx
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X.
Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
10
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as
of June 2, 2006 Premier
XXXX US Emerging Growth Fund Ltd.
By: /s/
Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx, President
XXXX
Capital Group, Inc.,
Investment
Adviser
Address:
c/o
RENN
Capital Group, Inc.
0000
X.
Xxxxxxx Xxxxxxxxxx
Xxxxx
000-XX 00
Xxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxxxxx
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X.
Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
10
Exhibit
A
Symbollon
Pharmaceuticals, Inc.
Selling
Securityholder Questionnaire
The
undersigned beneficial owner of shares of Common Stock (including shares that
may be acquired upon exercise of warrants) (the “Registrable
Securities”)
of
Symbollon Pharmaceuticals, Inc. (the “Company”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission a registration statement (the “Registration
Statement”)
for the
registration and resale under the Securities Act of 1933, as amended (the
“Securities
Act”),
of the
Registrable Securities. This Questionnaire is delivered pursuant to the terms
of
the Registration Rights Agreement, dated as of June __, 2006 (the “Registration
Rights Agreement”),
among
the Company and the Holders named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
The
undersigned beneficial owner (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under such Item
3)
in the Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
1. Name.
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of each Control Person (which means a natural person that
directly or indirectly has power to vote or dispose of the securities
covered by this Questionnaire):
|
A-1
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
Fax:
|
|
Contact
Person:
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and Principal Amount of Registrable Securities beneficially
owned:
|
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
No
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
No
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes
No
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
A-2
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
7. Claims
against the Company:
Except
as set forth below, to the actual knowledge of the officers and directors or
persons performing similar functions for the undersigned, neither the
undersigned nor any of its Affiliates, officers, directors or principal equity
holders (owners of 5% or more of the equity securities of the undersigned)
has
any claims against the Company, its directors, officers, agents and employees,
and each Person who controls the Company (within the meaning of Section 15
of
the Securities Act and Section 20 of the Exchange Act) relating to the Company’s
sale of Registrable Securities to the undersigned.
State
any
exceptions here:
________________________________________________________________________________________________________________________________________________________________________________________________________________________
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein (other than changes in beneficial ownership
of Common Stock after the effectiveness of the Registration Statement) that
may
occur subsequent to the date hereof at any time prior to the effectiveness
of
the Registration Statement or while the Registration Statement remains
effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers hereto and the inclusion of such information
in
the Registration Statement and the related prospectus and any amendments or
supplements thereto. The undersigned understands that such information will
be
relied upon by the Company in connection with the preparation or amendment
of
the Registration Statement and the related prospectus.
A-3
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated:
Beneficial
Owner:
By:
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
Xxxx
X. Xxxxxxxxx
Symbollon
Pharmaceuticals, Inc.
00
Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Fax
No. (000) 000-0000
A-4
Exhibit
B
Symbollon
Pharmaceuticals, Inc.
CERTIFICATE
OF SUBSEQUENT SALE
[Transfer
Agent]
|
RE:
|
Sale
of Securities of Common Stock of Symbollon Pharmaceuticals, Inc.
(the
“Company”)
pursuant to the Company’s Prospectus dated _______________, 2006 (the
“Prospectus”)
|
Dear
Sir/Madam:
The
undersigned hereby certifies, in connection with the sale of shares of Common
Stock of the Company included in the table of Selling Shareholders in the
Prospectus, that the undersigned has sold the Shares pursuant to the Prospectus
and in a manner described under the caption “Plan of Distribution” in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling
Shareholder (the beneficial owner):
Record
Holder (e.g., if held in name of nominee):
Restricted
Stock Certificate No.(s):
Number
of
Shares Sold:
Date
of
Sale:
In
the
event that you receive a stock certificate(s) representing more shares of Common
Stock than have been sold by the undersigned, then you should return to the
undersigned a newly issued certificate for such excess shares in the name of
the
Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you should place a
stop
transfer on your records with regard to such certificate.
Dated: Very
truly yours,
By:
Print
Name:
Title:
