Exhibit 2
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
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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 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.
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3.8 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the Company's knowledge,
currently threatened) against 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
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as it believes to be adequate for the conduct of its Business and the value of
its properties and as is customary for 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 or
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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 may be required for
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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 directly or indirectly offer, sell, contract or grant an
option to sell, pledge, encumber, or otherwise
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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.
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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.
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(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 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
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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.
(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
11
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 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:
12
(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 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"):
13
(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 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.
14
(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 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
15
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 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
16
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 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
17
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.
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
18
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 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.
19
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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
----------------------------------- -----------------------------------
K. Xxxxxxx Xxxxxxx Xxxxxx X. Xxxxx
Title: President and Title: Manager
Chief Executive Officer
Bay Resource Partners, L.P.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx
Title: Vice President
Bay Resource Partners Offshore Ltd.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx
Title: Vice-President
Buoybreese & Co.
By: /s/ Xxxxxxx Xxxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx Xxxxx
Title:
/s/ K. Xxxxxxx Xxxxxxx
K. Xxxxxxx Xxxxxxx
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
Buoybreese & Co. Chase Manhattan Bank, NA 720,000
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
