CELLEGY PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of July 30, 1999 by and among Cellegy Pharmaceuticals, Inc., a
California corporation (the "Company"), and the parties listed on the Schedule
of Investors separately delivered to the Investors (the "Schedule of Investors")
(each hereinafter individually referred to as an "Investor" and collectively
referred to as the "Investors").
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 Authorization. As of the Closing (as defined below) the
Company will have authorized the issuance, pursuant to the terms and conditions
of this Agreement, of up to 1,561,000 shares of the Company's Common Stock, no
par value (the "Common Stock").
1.2 Agreement to Purchase and Sell. The Company agrees to sell
to each Investor at the Closing, and each Investor agrees, severally and not
jointly, to purchase from the Company at the Closing, the number of shares of
Common Stock for the aggregate price set forth beside such Investor's name on
the Schedule of Investors, at the price per share for such Investor set forth on
the Schedule of Investors. The shares of Common Stock purchased and sold
pursuant to this Agreement will be collectively hereinafter referred to as the
"Purchased Shares."
2. CLOSING.
2.1 The Closing. The purchase and sale of the Purchased Shares
will take place at the offices of Fenwick & West LLP, Two Xxxx Xxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx, at 11:00 a.m. Pacific Time, on July 30, 1999
or at such other time and place as the Company and Investors who have agreed to
purchase a majority of the Purchased Shares listed on the Schedule of Investors
mutually agree upon (which time and place are referred to in this Agreement as
the "Closing"), provided that the closing may not be delayed for more than five
business days without the consent of all Investors. At the Closing, the Company
will deliver to each Investor a certificate representing the number of Purchased
Shares that such Investor has agreed to purchase hereunder as shown on the
Schedule of Investors against delivery to the Company by such Investor of the
full purchase price of such Purchased Shares, paid by (i) a check payable to the
Company's order, (ii) wire transfer of funds to the Company or (iii) any
combination of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Investor that, except as set forth in the Disclosure
Schedule and Schedule of Exceptions (the "Disclosure Schedule") separately
delivered by the Company to the Investors (which Disclosure Schedule shall be
deemed to be representations and warranties to the Investors by the Company
under this Section and to qualify each of the
representations and warranties set forth herein), the statements in the
following paragraphs of this Section 3 are all true and correct:
3.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California, and has all requisite corporate power and
authority to conduct its business as currently conducted. The Company is
qualified to do business as a foreign corporation in each jurisdiction where
failure to be so qualified could reasonably be expected to have a material
adverse effect on the business, assets, financial condition, prospects, or
results of operations or assets of the Company (the "Business") (such effect
referred to as a "Material Adverse Effect").
3.2 Capitalization. Immediately before the Closing the
capitalization of the Company will consist of the following:
(a) Preferred Stock. A total of 5,000,000 authorized
shares of Preferred Stock, no par value per share (the "Preferred Stock"), none
of which are issued and outstanding.
(b) Common Stock. A total of 20,000,000 authorized
shares of Common Stock, of which approximately 10,177,063 shares were issued and
outstanding as of June 30, 1999.
(c) Options, Warrants, Reserved Shares. Except for:
(i) the approximately 1,657,400 shares of Common Stock issuable upon exercise of
options outstanding as of June 30, 1999, (iii) approximately 34,000 additional
shares of Common Stock reserved for issuance under the Company's 1995 Directors
Stock Option Plan, (iv) approximately 792,600 additional shares of Common Stock
reserved for issuance under the Company's 1995 Equity Incentive Plan and (v)
warrants to purchase an aggregate of approximately 1,573,000 shares of Common
Stock, there are not outstanding any options, warrants, rights or agreements for
the purchase or acquisition from the Company of any shares of its capital stock
or any securities convertible into or ultimately exchangeable or exercisable for
any shares of the Company's capital stock.
3.3 Subsidiaries. Except for Cellisis Pharmaceuticals, Inc.,
which is not a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X, the Company does not presently own or control, directly or indirectly, any
interest in any other corporation, partnership, trust, joint venture,
association, or other entity.
3.4 Due Authorization; No Violation. All corporate action on
the part of the Company and its officers, directors and shareholders necessary
for the authorization, execution and delivery of, and the performance of all
obligations of the Company under, this Agreement, and the authorization,
issuance, reservation for issuance and delivery of all of the Purchased Shares
being sold under this Agreement, has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to
2
or affecting the enforcement of creditors' rights generally and (ii) the effect
of rules of law governing the availability of equitable remedies. Neither the
execution, delivery or performance by the Company of this Agreement nor the
consummation by the Company of the transactions contemplated hereby will (i)
conflict with or result in a breach of any provision of the Restated Articles of
Incorporation of the Company (the "Restated Articles") or the Company's Bylaws,
(ii) conflict with, result in a violation or breach of, or cause a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any material agreement, instrument or
obligation to which the Company is a party, which default could reasonably be
expected to have a Material Adverse Effect or (iii) violate any law, statute,
rule or regulation or judgment, order, writ, injunction or decree of any
governmental authority, in each case applicable to the Company or its properties
or assets and which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
3.5 Valid Issuance of Stock. The Purchased Shares, when
issued, sold and delivered in accordance with the terms of this Agreement for
the consideration provided for herein, will be duly and validly issued, fully
paid and nonassessable and are not subject to preemptive or other similar rights
of any shareholder of the Company.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the valid execution and delivery of
this Agreement, the offer, sale and issuance of the Purchased Shares, or the
consummation of the transactions contemplated by this Agreement, except for
qualifications or filings under the Securities Act of 1933, as amended (the
"Act") and the applicable rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") under the Act, and all
other applicable securities laws as may be required in connection with the
transactions contemplated by this Agreement. All such consents, approvals,
orders, authorizations, registrations, qualifications, designations,
declarations or filings will be effective on the Closing, and all such filings
be made within the time prescribed by law.
3.7 Absence of Changes. After the respective dates as of which
information is given in the Company's Proxy Statement for the annual meeting of
shareholders held on May 20, 1999, the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999 respectively (such documents, together with
the Disclosure Schedule, referred to collectively as the "Disclosure
Documents"), there has not been (i) any material adverse change in the Business,
(ii) any transaction that is material to the Company, (iii) any obligation,
direct or contingent, that is material to the Company, incurred by the Company,
(iv) any change in the outstanding indebtedness of the Company that is material
to the Company, (v) any dividend declared, paid or made on the capital stock of
the Company or (vi) any loss or damage (whether or not insured) to the property
of the Company which has been sustained which could reasonably be expected to
have a Material Adverse Effect.
3.8 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the Company's knowledge,
currently threatened) against
3
the Company, its activities, properties or assets, which (i) might prevent the
consummation of the transactions contemplated hereby or (ii) if adversely
resolved against the Company could reasonably be expected to have a Material
Adverse Effect.
3.9 Nasdaq Listing. The Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and is listed on the Nasdaq Stock Market (Nasdaq National Market). The
Company has not received any notification that the Commission or the National
Association of Securities Dealers, Inc. is contemplating the termination of such
registration or listing. Before the Shelf Registration Statement (as defined in
Section 7.2) is declared effective by the Commission, the Purchased Shares will
have been approved for quotation on the Nasdaq Stock Market, subject to notice
of issuance.
3.10 Exchange Act Filings. The Company has filed in a timely
manner all reports and other information required to be filed ("Filings") with
the Commission pursuant to the Exchange Act during the preceding twelve calendar
months. On their respective dates of filing, the Filings complied as to form in
all material respects with the requirements of the Exchange Act, and the
published rules and regulations of the Commission promulgated thereunder. To the
Company's knowledge after reasonable investigation, on their respective dates of
filing, the Filings did not include any untrue statement of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, and all
financial statements contained in the Filings fairly present the financial
position of the Company on the dates of such statements and the results of
operations for the periods covered thereby in accordance with generally accepted
accounting principles consistently applied throughout the periods involved and
prior periods, except as otherwise indicated in the notes to such financial
statements.
3.11 Disclosure. To the Company's knowledge after reasonable
investigation, the representations and warranties made by the Company in this
Agreement (including the Disclosure Schedule) when read together do not contain
any untrue statement of a material fact and do not omit to state a material fact
necessary to make the statements herein as a whole not misleading.
3.12 Governmental Permits, Etc. The Company possesses all
licenses, franchises, governmental approvals, permits or other governmental
authorizations (collectively, "Authorizations") relating to the operation of the
Business, except for those Authorizations the failure of which to possess would
not, separately or in the aggregate, have a Material Adverse Effect. To the
Company's knowledge after reasonable investigation, the Company is in compliance
with the terms of all Authorizations and all laws, ordinances, regulations and
decrees which to the Company's knowledge are applicable to the Business, except
for such non-compliance which does not, separately or in the aggregate, have a
Material Adverse Effect.
3.13 Insurance. The Company is covered by insurance with
companies the Company believes to be responsible and in such amounts and
covering such risks as it believes to be adequate for the conduct of its
Business and the value of its properties and as is customary for
4
companies engaged in similar businesses in similar industries. The Company has
no knowledge that any such carrier has grounds or intends to cancel or fail to
renew such policies.
3.14 Intellectual Property. To the Company's knowledge after
reasonable investigation, the Company owns or possesses the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) and other rights or interests in items of intellectual
property as are necessary for the operation of the Business operated by it (the
"Patent and Proprietary Rights"), except where the failure to own or possess
such rights would not have a Material Adverse Effect; the Company has not
received notice of any asserted rights with respect to any of the Patent and
Proprietary Rights which, if determined unfavorably with respect to the
interests of the Company would have a Material Adverse Effect; and the Company
has not received notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any of the Patent or Proprietary
Rights, which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding), individually or in the aggregate, would result in
a Material Adverse Effect.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS.
Each Investor hereby represents and warrants to, and agrees with, the Company,
that:
4.1 Authorization. All corporate action on the part of the
Investor and its officers, directors and stockholders necessary for the
authorization, execution and delivery of, and the performance of all obligations
of the Investor under, this Agreement has been taken or will be taken prior to
the Closing, and this Agreement constitutes a valid and legally binding
obligation of the Investor, enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and (ii) the effect of
rules of law governing the availability of equitable remedies.
4.2 Purchase for Own Account. The Purchased Shares to be
purchased by such Investor hereunder will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the Act, and such
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. If not an individual, such Investor also
represents that such Investor has not been formed for the specific purpose of
acquiring Purchased Shares.
4.3 Disclosure of Information. The Investor has received a
copy of the Disclosure Documents and has received or has had full access to all
the information it considers necessary or appropriate to make an informed
investment decision with respect to the Purchased Shares to be purchased by the
Investor under this Agreement. Investor further has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Purchased Shares and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort
5
or expense) necessary to verify any information furnished to the Investor or to
which the Investor had access. The foregoing, however, does not in any way limit
or modify the representations and warranties made by the Company in Section 3.
4.4 Investment Experience. Such Investor understands that the
purchase of the Purchased Shares involves substantial risk. Such Investor: (i)
has experience as an investor in securities of companies in the development
stage and acknowledges that such Investor is able to fend for itself, can bear
the economic risk of such Investor's investment in the Purchased Shares and has
such knowledge and experience in financial or business matters that such
Investor is capable of evaluating the merits and risks of this investment in the
Purchased Shares and protecting its own interests in connection with this
investment and/or (ii) has a preexisting personal or business relationship with
the Company and certain of its officers, directors or controlling persons of a
nature and duration that enables such Investor to be aware of the character,
business acumen and financial circumstances of such persons.
4.5 Accredited Investor Status. Unless otherwise expressly
indicated on the Schedule of Investors to this Agreement, such Investor is an
"accredited investor" within the meaning of Regulation D promulgated under the
Act.
4.6 Restricted Securities. Such Investor understands that the
Purchased Shares are characterized as "restricted securities" under the Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the Act and the Rules and Regulations
such securities may be resold without registration under the Act only in certain
limited circumstances. In this connection, such Investor represents that such
Investor is familiar with Rule 144 of the Commission and understands the resale
limitations imposed thereby and by the Act. Such Investor understands that the
Company is under no obligation to register any of the Purchased Shares except as
provided in Section 7 below.
4.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, such Investor further agrees not
to make any disposition of all or any portion of the Purchased Shares unless and
until:
(a) there is then in effect a registration statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement and the provisions of Section 7 of
this Agreement; or
(b) (i) such Investor shall have notified the Company
of the proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition, and (ii)
such Investor shall have furnished the Company, at the expense of such Investor
or its transferee, with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such securities
under the Act.
Notwithstanding the provisions of paragraphs (a) and (b) above,
no such registration statement or opinion of counsel shall be required: (i) for
any transfer of any Purchased Shares in compliance with Rule 144 or Rule 144A
(except that an opinion of counsel
6
may be required for other than routine Rule 144 transactions), or (ii) for any
transfer of Purchased Shares by an Investor that is a partnership or a
corporation to (A) a partner of such partnership or shareholder of such
corporation, or (B) the estate of any such partner or shareholder, or (iii) for
the transfer by gift, will or intestate succession by any Investor to his or her
spouse or lineal descendants or ancestors or any trust for any of the foregoing;
provided, that in each of the foregoing cases the transferee agrees in writing
to be subject to the terms of this Section 4 (other than Section 4.5) to the
same extent as if the transferee were an original Investor hereunder.
4.8 Legends. It is understood that the certificates evidencing
the Purchased Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
(b) THE SHARES EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO THE PROVISIONS OF, AND MAY HAVE CERTAIN REGISTRATION RIGHTS PURSUANT
TO, THE PROVISIONS OF A PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE HOLDER,
WHICH MAY RESTRICT THE TRANSFER OF SUCH SHARES IN CERTAIN CIRCUMSTANCES. A COPY
OF SUCH AGREEMENT MAY BE OBTAINED, WITHOUT CHARGE, AT THE COMPANY'S PRINCIPAL
OFFICE.
(c) After consultation with counsel for the Investor,
any legend that counsel to the Company reasonably deems appropriate under the
laws of the State of California.
The legends set forth in (a) and (b) above shall be removed by the
Company from any certificate evidencing Purchased Shares upon delivery to the
Company of an opinion of counsel to the Investor, reasonably satisfactory to the
Company, that the legended security can be freely transferred in a public sale
without a registration statement being in effect under the Act and in compliance
with exemption requirements under applicable state securities laws and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Purchased Shares.
4.9 Resale Restrictions. To the extent requested by the
Company or an underwriter or placement agent of securities of the Company, each
Investor agrees that it will not
7
directly or indirectly offer, sell, contract or grant an option to sell, pledge,
encumber, or otherwise dispose of or otherwise transfer (a "Disposition") any
Purchased Shares (other than to donees, shareholders or partners of the Investor
who agree to be similarly bound) for up to 90 days after the effective date of a
registration statement of the Company filed under the Act; provided, however,
that (i) this paragraph shall be applicable only to the first such registration
statement of the Company filed after the date of this Agreement that covers
securities to be sold on its behalf to the public in an underwritten offering
and (ii) all executive officers and directors of the Company then holding Common
Stock who beneficially own more than one percent of the outstanding shares of
Common Stock enter into similar agreements. This paragraph shall not preclude
Investor from including Registrable Securities in, and selling such Registrable
Securities pursuant to, such registration statement.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.
5.1 Closing. The obligations of each Investor under Section 2
of this Agreement to purchase the Purchased Shares at the Closing are subject to
the fulfillment or waiver, on or before the Closing, of each of the following
conditions, and the Company shall use all reasonable efforts to cause such
conditions to be satisfied on or before the Closing:
5.1.1 Representations and Warranties True. Each of
the representations and warranties of the Company contained in Section 3 shall
be true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.1.2 Performance. The Company shall have performed
and complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.1.3 Compliance Certificate. The Company shall have
delivered to the Investors at the Closing a certificate signed on its behalf by
its President, Chief Executive Officer, or Chief Financial Officer certifying
that the conditions specified in Sections 5.1.1 and 5.1.2 have been fulfilled.
5.1.4 Registration; Securities Exemptions. The offer
and sale of the Purchased Shares to the Investors pursuant to this Agreement
shall be exempt from the registration requirements under the Act and the
California Corporate Securities Law of 1968, as amended, and the rules
thereunder (the "Law") and the registration and/or qualification requirements of
all other applicable state securities laws.
5.1.5 Proceedings and Documents. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Investor and to special counsel to the Investors, and
they shall each have received all such documents as they may reasonably request.
8
5.1.6 No Material Change. There shall have been no
material adverse change in the Business from the date of this Agreement.
5.1.7 Opinion of Counsel. The Investors shall have
received an opinion of counsel to the Company substantially in the form of
Exhibit B attached hereto.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
6.1. Closing. The obligations of the Company under this
Agreement to sell the Purchased Shares to the Investors at the Closing are
subject to the fulfillment or waiver on or before the Closing of each of the
following conditions by the Investor, and each Investor shall use all reasonable
efforts to cause such conditions to be satisfied on or before the Closing:
6.1.1 Representations and Warranties. The
representations and warranties of the Investor contained in Section 4 shall be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
6.1.2 Payment of Purchase Price. The Investor shall
have delivered to the Company the purchase price for the Purchased Shares
specified for such Investor on the Schedule of Investors attached hereto, in
accordance with the provisions of Section 2.
6.1.3 Registration; Securities Exemptions. The offer
and sale of the Purchased Shares to the Investor pursuant to this Agreement
shall be exempt from the registration requirements under the Act and shall be
exempt from the qualification requirements of the Law and the registration
and/or qualification requirements of all other applicable state securities laws.
6.1.4 Proceedings and Documents. All corporate and
other proceedings in connection with the transactions contemplated at the
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Company and to the Company's legal counsel, and the
Company shall have received such documents as it may reasonably request.
7. REGISTRATION RIGHTS.
7.1 Definitions. For purposes of this Agreement:
(a) Form S-3. The term "Form S-3" means such form
under the Act as is in effect on the date hereof or any successor registration
form under the Act subsequently adopted by the Commission which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the Commission.
(b) Holder. The term "Holders" shall mean holders of
Registrable Securities that have registration rights pursuant to this Agreement.
9
(c) Registration. The terms "register," "registered,"
and "registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement.
(d) Registrable Securities. The term "Registrable
Securities" means: (1) all of the Purchased Shares, and (2) any shares of Common
Stock of the Company issued as a dividend or other distribution with respect to,
or in exchange for or in replacement of, any of the Purchased Shares; provided,
however, that the term "Registrable Securities" shall exclude in all events (and
such securities shall not constitute "Registrable Securities") (i) any
Registrable Securities sold or transferred by a person in a transaction in which
the registration rights granted under this Agreement are not assigned in
accordance with the provisions of this Agreement, (ii) any Registrable
Securities sold in a public offering pursuant to a registration statement filed
with the Commission or sold pursuant to Rule 144 promulgated under the Act
("Rule 144") or (iii) as to any Holder, the Registrable Securities held by such
Holder if all of such Registrable Securities can be publicly sold without volume
restriction within a three-month period pursuant to Rule 144.
(e) Prospectus: The term "Prospectus" shall mean the
prospectus included in any Shelf Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Act), as amended or supplemented by any
prospectus supplement (including, without limitation, any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Shelf Registration Statement), and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
(f) Shelf Registration Statement. See Section 7.2(a).
7.2 Form S-3 Shelf Registration.
(a) Registration. The Company shall prepare and file
with the Commission within 60 days following the Closing and use all reasonable
efforts to have declared effective as soon as practicable thereafter, a
registration statement on Form S-3 (or, if the Company is not then eligible to
use Form S-3, then another appropriate form) providing for the resale by the
Holders of all of the Registrable Securities (the "Shelf Registration
Statement"). The Shelf Registration Statement may include securities other than
those held by Holders. If the Shelf Registration Statement is not declared
effective by December 31, 1999 and does not remain effective for 45 continuous
days after its effective date (except for any permitted closing of the Permitted
Window as described in Section 7.2(b)(c) below), then the Investors holding
Registrable Securities shall be entitled to receive from the Company (pro rata
in accordance with their ownership of Registrable Securities) an aggregate
number of shares of Common Stock equal to 1% of the number of Purchased Shares
for each month after November 30, 1999, that the Shelf Registration Statement is
not declared effective (or does not remain effective), up to a
10
maximum aggregate amount of 5% of the Purchased Shares. The Company shall use
its best efforts to keep the Shelf Registration Statement continuously
effective, pursuant to the Act and the Rules and Regulations promulgated
thereunder, until (i) the date when such Registrable Securities cease to meet
the definition of Registrable Securities pursuant to Section 7.1, or (ii) the
Company's obligations hereunder terminate; provided, however:
(i) that the Holders will sell the Registrable
Securities pursuant to such registration only during a "Permitted Window" (as
defined below);
(ii) if the Company furnishes to the Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for sales to be made from such Shelf Registration Statement at such time (or, in
the case a "Notice of Resale" (as defined below) has been given, that it would
be seriously detrimental to the Company and its shareholders for the Permitted
Window to commence at such time) due to (A) the existence of a material
development or potential material development involving the Company which the
Company would be obligated to disclose in the Prospectus contained in the Shelf
Registration Statement, which disclosure would, in the good faith judgment of
the President or Chief Executive Officer or the Board of Directors of the
Company, be premature or otherwise inadvisable at such time or (B) concurrent
public filings with the Commission of other registration statements, then the
Company will have the right to defer the filing (the "Deferral Right") of the
Shelf Registration Statement (or the commencement of the Permitted Window, as
the case may be) for a period of not more than 60 days after the date it would
otherwise be required to file the Shelf Registration Statement pursuant to this
Section 7.2(a) (or after receipt of the Notice of Resale, as the case may be);
provided, however, that the Company will not utilize the Deferral Right more
than once in any twelve month period; and provided further, however, that the
Company may defer the filing of the Shelf Registration Statement (or the
commencement of the Permitted Window as the case may be) for up to 60 days if so
requested by an underwriter in connection with an underwritten offering of the
Company's securities so long as any selling shareholders in such underwritten
offering are subject to a lock-up agreement of the same duration (other than
with respect to the Company securities to be sold by such selling shareholders
in such underwritten offering); and
(iii) that the Company will not be required to effect
any such registration, qualification or compliance under applicable state blue
sky laws in any particular jurisdiction in which the Company would thereby be
required to qualify to do business or to execute a general consent to service of
process.
In the event that the Shelf Registration Statement shall cease
to be effective, the Company shall promptly prepare and file a new registration
statement covering the Registrable Securities and shall use its best efforts to
have such registration statement declared effective as soon as possible. Any
such registration statement shall be considered a "Shelf Registration Statement"
hereunder.
11
(b) Permitted Window.For the purposes of this
Agreement, a "Permitted Window" with respect to a Holder is a period of 30
consecutive calendar days commencing upon delivery to the Holder of the
Company's written notification to the Holder in response to a Notice of Resale
that the Prospectus contained in the Shelf Registration Statement is available
for resale. In order to cause a Permitted Window to commence, a Holder must
first give written notice to the Company of its present intention to sell part
or all of the Registrable Securities pursuant to such registration (a "Notice of
Resale"). Upon delivery of such Notice of Resale, the Company will give written
notice to the Holders as soon as practicable, but in no event not more than
three business days after such delivery, that (A) the Permitted Window will
commence on the date the Company's notice is delivered to the Holder, (B) it is
necessary for the Company to supplement the Prospectus or make an appropriate
filing under the Exchange Act so as to cause the Prospectus to become current
(unless a certificate of the President or Chief Executive Officer is delivered
as provided in 7.2(a)(ii) above), or (C) the Company is required under the Act
and the Rules and Regulations thereunder to amend the Shelf Registration
Statement in order to cause the Prospectus to be current (unless a certificate
of the President or Chief Executive Officer is delivered as provided in
7.2(a)(ii) above). If the Company determines that a supplement to the
Prospectus, the filing of a report pursuant to the Exchange Act or an amendment
to the Shelf Registration Statement required under the Act, as provided above,
is necessary, it will take such actions as soon as reasonably practicable
(subject to paragraph (c) below), and the Company will notify the Holder of the
filing of such supplement, report or amendment, and, in the case of an
amendment, the effectiveness thereof, and the Permitted Window will then
commence.
(c) Closing of Permitted Window. During a Permitted
Window and in the event (i) of the happening of any event of the kind described
in Section 7.3(c) hereof or (ii) that, in the judgment of the President, Chief
Executive Officer or the Company's Board of Directors, it is advisable to
suspend use of the Prospectus for a discrete period of time due to undisclosed
pending corporate developments or pending public filings with the Commission
(which need not be described in detail), the Company shall deliver a certificate
in writing to the Holder to the effect of the foregoing and, upon receipt of
such certificate, the Permitted Window shall terminate. The Permitted Window
shall resume upon the Holder's receipt of copies of the supplemented or amended
Prospectus, or at such time as the Holder is advised in writing by the Company
that the Prospectus may be used, and at such time as the Holder has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus and which are required to be
delivered as part of the Prospectus. In any event, the Permitted Window shall
resume no later than 45 days after it has been terminated pursuant to this
Section. If the Company has previously terminated a Permitted Window pursuant to
this subsection within 90 days of the date that it delivers another notice
pursuant this subsection terminating another Permitted Window, then the time
period set forth in the preceding sentence shall be shortened so that the
Permitted Window shall resume no later than 10 days after it has been terminated
pursuant to such second notice.
(d) Expenses. The registration fees and expenses
incurred by the Company in connection with the Shelf Registration Statement and
actions taken by the Company
12
in connection with each Permitted Window shall be borne by the Company. Holder
shall be responsible for any fees and expenses of its counsel or other advisers.
7.3 Obligations of the Company. Whenever required to effect
the registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Furnish to the Holder such number of copies of a
Prospectus, including a preliminary Prospectus, in conformity with the
requirements of the Act, and such other documents as it may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by it
that are included in such registration.
(b) Use all reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holder, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(c) Notify the Holder promptly (i) of any request by
the Commission or any other federal or state governmental authority during the
period of effectiveness of a registration statement for amendments or
supplements to such registration statement or related prospectus or for
additional information, (ii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose and (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 or threatening of any proceeding for such purpose.
(d) Make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible time.
(e) If the registration involves an underwritten
offering, enter into an underwriting agreement in customary form with the
underwriters containing customary indemnification provisions.
7.4 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Section 7.2 that
the Holder shall furnish to the Company such information regarding it, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Registrable Securities.
7.5 Indemnification. In the event any Registrable Securities
are included in a registration statement under this Agreement:
(a) By the Company. To the extent permitted by law,
the Company will indemnify and hold harmless the Holder, the officers and
directors of the Holder and each
13
person, if any, who controls the Holder (such persons and entities referred to
as "Holder Indemnified Parties"), against any losses, expenses, damages or
liabilities to which they may become subject under the Act, the Exchange Act or
other federal or state law (a "Loss"), insofar as such Losses (or actions in
respect thereof) arise out of any claim, action or proceeding brought by a third
party arising out of or based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in a registration statement filed
pursuant to this Section 7;
(ii) the omission or alleged omission to state in a
registration statement filed pursuant to this Section 7 a
material fact required to be stated therein, or necessary to
make the statements therein not misleading; or
(iii) any violation or alleged violation by the
Company of the Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the
Act, the Exchange Act or any federal or state securities law,
in each case in connection with the offering covered by such
registration statement;
and the Company will reimburse each Holder Indemnified Party for any legal or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such Violation; provided, however, that the
indemnity agreement contained in this subsection shall not apply to amounts paid
in settlement of any such Loss, if such settlement is effected without the
consent of the Company, nor shall the Company be liable in any such case for any
such Loss to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration statement by the Holder
Indemnified Party; and provided further, that the Company will not be liable for
the reasonable legal fees and expenses of more than one counsel to the Holder
Indemnified Parties.
(b) By the Holder. To the extent permitted by law,
each Holder will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the registration statement, and each
person, if any, who controls the Company within the meaning of the Act (such
persons and entities referred to as "Company Indemnified Parties") against any
Losses to which such Company Indemnified Parties may become subject under the
Act, the Exchange Act or other federal or state law, insofar as such Losses (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by the Holder
expressly for use in connection with such registration statement; and the Holder
will reimburse any legal or other expenses reasonably incurred by such Company
Indemnified Parties in connection with investigating or defending any such
Violation; provided, however, that the indemnity agreement contained in this
subsection shall not apply to amounts
14
paid in settlement of any such Loss if such settlement is effected without the
consent of the Holder; provided further, that the Holder shall not be liable for
the reasonable legal fees and expenses of more than one counsel to the Company
Indemnified Parties; and provided further, that the total amounts payable in
indemnity by the Holder under this subsection in respect of any Violation shall
not exceed the net proceeds received by the Holder in the registered offering
out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section, deliver to the indemnifying party a written notice of the
commencement of such an action and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel selected by the indemnifying party and reasonably
acceptable to a majority in interest of the indemnified parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if the indemnified party has been advised in writing by counsel that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual conflict of interests
between such indemnified party and any other party represented by such counsel
in such proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action shall
relieve such indemnifying party of liability to the indemnified party under this
Section to the extent such delay caused actual prejudice to the indemnified
party, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section.
(d) Contribution. In order to provide for just and
equitable contribution to joint liability under the Act in any case in which
either (i) a Holder Indemnified Party makes a claim for indemnification pursuant
to this Section but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section provides for indemnification in such case, or (ii) contribution
under the Act may be required on the part of the Holder Indemnified Party in
circumstances for which indemnification is provided under this Section then, and
in each such case, the Company and the Holder Indemnified Parties will
contribute to the aggregate Losses to which they may be subject (after
contribution from others) in proportion to their relative fault as determined by
a court of competent jurisdiction; provided however, that in no event, except in
instances of fraud by the Holder in which there is no limitation, (i) shall the
Holder be responsible for more than the portion represented by the percentage
that the public offering price of its Registrable Securities offered by and sold
under the registration statement bears to the public offering price of all
securities offered by and sold under such registration statement and (ii) shall
the Holder be required to contribute any amount in excess of the public offering
price of all such Registrable Securities offered and sold by the Holder pursuant
to such registration statement; and in any event, no person or entity guilty of
fraudulent
15
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(e) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of the Company and the Holder are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes effective
or in the amended prospectus filed with the Commission pursuant to Rule 424(b)
of the Commission (the "Final Prospectus"), such indemnity agreements shall not
inure to the benefit of any person if a copy of the Final Prospectus was
furnished in a timely manner to the indemnified party and was not furnished to
the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Act.
(f) Survival. The obligations of the Company and the
Holder under this Section shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
7.6 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, for so long as the Holder owns any Registrable Securities, the
Company agrees to:
(a) Make and keep adequate, current public
information available, as those terms are understood and defined in Rule 144
under the Act, at all times;
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Exchange Act; and
(c) So long as the Holder owns any Registrable
Securities, to furnish to the Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144, a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
7.7 Termination of Cellegy's Obligations. The Company shall
have no obligation to register, or maintain, a registration statement governing
Registrable Securities, (i) if all Registrable Securities have been registered
and sold pursuant to registrations effected pursuant to this Agreement, or (ii)
with respect to any particular Holder, at such time as all Registrable
Securities held by such Holder may be sold without any volume restrictions
within a three month period under Rule 144, as it may be amended from time to
time, including but not limited to amendments that reduce that period of time
that securities must be held before such securities may be sold pursuant to such
rule.
7.8 Piggyback Registrations. (a) The Company shall use its
best efforts to notify all Holders of Registrable Securities in writing at least
twenty (20) days before filing any
16
registration statement under the Act for purposes of effecting an underwritten
public offering by the Company of securities of the Company (excluding
registration statements relating to any employee benefit plan or a corporate
merger, acquisition or reorganization, or any Form S-3 similar shelf
registration statements relating to the non-underwritten offer and sale of
securities for the account of persons or entities other than the Company) and
will afford each such Holder an opportunity to include in such registration
statement all or any part of the Registrable Securities then held by such
Holder. Each Holder desiring to include in any such registration statement all
or any part of the Registrable Securities held by such Holder shall, within ten
(10) days after receipt of the above-described notice from the Company, so
notify the Company in writing, and in such notice shall inform the Company of
the number of Registrable Securities such Holder wishes to include in such
registration statement. If a Holder decides not to include all of its
Registrable Securities in any such registration statement filed by the Company,
such Holder shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein. The Holders'
rights to include any Registrable Securities in any offering under this Section
are subject in all events to the ability of the managing underwriter for such
offering to exclude some or all of the Registrable Securities requested to be
registered on the basis of a good faith determination that inclusion of such
securities might adversely affect the success of the offering or otherwise
adversely affect the Company. Any such exclusion shall be pro rata among all
Holders who have requested to sell Registrable Securities in such registration.
(b) Underwriting. If a registration statement under
which the Company gives notice under this Section is for an underwritten
offering, then the Company shall so advise the Holders of Registrable
Securities. In such event, the right of any such Holder's Registrable Securities
to be included in a registration pursuant to this Section shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary form
with the managing underwriter or underwriters selected for such underwriting and
shall furnish such information and documents as the Company or the managing
underwriter or underwriters may reasonably request. Notwithstanding any other
provision of this Agreement, if the managing underwriter determine(s) in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, then the managing underwriter(s) may exclude Registrable
Securities from the registration and the underwriting, pro rata among all
Holders who have requested to sell Registrable Securities in such registration.
If any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least ten (10) business days prior to the effective
date of the registration statement. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
(c) Expenses. The Holders shall be responsible for
their pro rata share of registration fees and underwriters' and brokers'
discounts and commissions relating to any Registrable Securities included in
such registration. Other registration expenses (such as legal
17
and accounting fees of counsel to the Company, printing fees, road show
expenses, and the like) shall be shall be borne by the Company.
(d) Number of Piggyback Registrations. The piggyback
registration rights granted to the Holders under this Section shall apply to the
first three registrations filed by the Company after the Closing.
8. ASSIGNMENT. Notwithstanding anything herein to the contrary,
the registration rights of the Holder under Section 7 hereof may be assigned
only to a party who acquires from the Holder at least 100,000 shares of
Registrable Securities (as such number may be adjusted to reflect subdivisions,
combinations and stock dividends of the Company's Common Stock), (such party is
referred to as a "Assignee"); provided, however, that (w) no party may be
assigned any of the foregoing rights until the Company is given written notice
by the assigning party at the time of such assignment stating the name and
address of the Assignee and identifying the securities of the Company as to
which the rights in question are being assigned; (x) that any such Assignee
shall receive such assigned rights subject to all the terms and conditions of
this Agreement; and (y) no such assignment or assignments shall increase the
obligations of the Company hereunder.
9. MISCELLANEOUS.
9.1 Survival of Warranties. The representations, warranties
and covenants of the Company and the Investors contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors, their counsel or the
Company, as the case may be.
9.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
9.3 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed under the internal laws of the State of
California as applied to agreements among California residents entered into and
to be performed entirely within California, without reference to principles of
conflict of laws or choice of laws.
9.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.5 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
18
9.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, by
telecopier or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified in the
case of the Company, at 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx, XX
00000, attention: President, with a copy to C. Xxxxx Xxxxx, Xxxxxxx & West LLP,
Two Palo Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or in the case of Investor,
at the record address for such Investor as reflected on the books of the
Company, with a copy to Xxxxx Xxxxxxxx, Esq., Xxxxxxxxxx & Xxxxx LLP, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as any
party may designate by giving ten (10) days advance written notice to the other
party. Notices shall be deemed delivered upon delivery if personally delivered,
one business day after transmission with confirmation of receipt if sent by
telecopier, or three days after deposit in the mails if mailed.
9.7 No Finder's Fees. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. Each Investor agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finder's or broker's fee (and any asserted liability) for which
the Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and to hold harmless each Investor
from any liability for any commission or compensation in the nature of a
finder's or broker's fee (and any asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
9.8 Costs, Expenses. Each party's costs in connection with the
preparation, execution delivery and performance of this Agreement (including
without limitation legal fees) shall be borne by that party.
9.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investors
holding a majority of the Purchased Shares purchased hereunder; provided,
however, that no amendment or waiver of the Company's obligations under Section
7 of this Agreement shall be binding upon any holder of Purchased Shares unless
that holder has consented in writing to such amendment or waiver. Subject to the
limitations set forth in the preceding sentence, any amendment or waiver
effected in accordance with this Section shall be binding upon each holder of
any Purchased Shares at the time outstanding (even if such Investor or other
holder did not vote with respect to, or voted against, such amendment or
waiver), each future holder of such securities, and the Company. The Investors
acknowledge that by virtue of this provision, holders of a majority of the
Purchase Shares may bind other holders to amendment or waivers that such other
holders may have voted to oppose.
9.10 Severability. If one or more provisions of this Agreement
are held to be invalid, illegal or unenforceable under applicable law, such
provision(s) shall be excluded from
19
this Agreement and the balance of the Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
9.11 Entire Agreement. This Agreement, together with any
exhibits or schedules hereto, constitutes the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
9.12 Further Assurances. From and after the date of this
Agreement, upon the request of an Investor or the Company, the Company and the
Investors shall execute and deliver such instruments, documents or 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.
[Remainder of this page intentionally left blank]
20
COUNTERPART SIGNATURE PAGE
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
THE COMPANY: INVESTOR:
Cellegy Pharmaceuticals, Inc., FOUR PARTNERS
a California corporation
By: /s/ K. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ -------------------------------
Title: President & CEO Title: Trustee
--------------------------- ----------------------------
20
COUNTERPART SIGNATURE PAGE
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
THE COMPANY: INVESTOR:
Cellegy Pharmaceuticals, Inc., Bay Resource Partners, L.P.
a California corporation
By: /s/ K. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------ -------------------------------
K. Xxxxxxx Xxxxxxx Xxxxxx X. Xxxx
Title: President & CEO Title: Vice President
--------------------------- GMT Capital Corp.
-----------------------------
21
COUNTERPART SIGNATURE PAGE
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
THE COMPANY: INVESTOR:
Cellegy Pharmaceuticals, Inc., Bay Resource Partners Offshore, Ltd.
a California corporation
By: /s/ K. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------ -------------------------------
K. Xxxxxxx Xxxxxxx Xxxxxx X. Xxxx
Title: President & CEO Title: Vice President
--------------------------- GMT Capital Corp.
-----------------------------
21
COUNTERPART SIGNATURE PAGE
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
THE COMPANY: INVESTOR:
Cellegy Pharmaceuticals, Inc., Janus Global Life Sciences Fund
a California corporation
By: /s/ K. Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx Xxxxx
------------------------------ -------------------------------
K. Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxx
Title: President & CEO Title: Assistant Vice President
--------------------------- -----------------------------
20
COUNTERPART SIGNATURE PAGE
COMMON STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
THE COMPANY: INVESTOR:
Cellegy Pharmaceuticals, Inc., K. Xxxxxxx Xxxxxxx & Xxx
a California corporation Xxxxxxx, Jyten
By: /s/ K. Xxxxxxx Xxxxxxx By: /s/ K. Xxxxxxx Xxxxxxx
------------------------------ -------------------------------
K. Xxxxxxx Xxxxxxx K. Xxxxxxx Xxxxxxx
Title: President & CEO Title:
--------------------------- -----------------------------
21
SCHEDULE OF INVESTORS
The price per share of common stock paid by all Investors shall be
$6.25 per share.
Name Address Number
---- ------- ------
of Shares
---------
Four Partners Tisch Financial Management 720,000
Attention: Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Bay Resource Partners, L.P. GMT Capital Corp. 40,000
Attention: Xxxx Xxxxx
0000 Xxxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Bay Resource Partners Offshore GMT Capital Corp. 56,000
Ltd. Attention: Xxxx Xxxxx
0000 Xxxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Janus Global Life Chase Manhattan Bank, NA 720,000
Sciences Fund Attention: Xxxx Xxxxx
In Account of State Street Bank & Trust Co.
4 New York Plaza, Ground Floor, Receive Window
Xxx Xxxx, XX 00000
K. Xxxxxxx Xxxxxxx & Nhu c/o Cellegy Pharmaceuticals, Inc. 25,000
Xxxxxxx, XX TEN Attention: K. Xxxxxxx Xxxxxxx
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
TOTAL 1,561,000
-----
