SHARE PURCHASE AGREEMENT
Exhibit
2.01
This
Share Purchase Agreement (the "Agreement")
is
dated as of March 31, 2006, and is entered into by and between Cellegy
Pharmaceuticals, Inc., a Delaware corporation with an address of 0000 Xxxxxxx
Xxxx, Xxxxxxxx 00, Xxxxxxxxxx Xxxxxx, XX 00000, Xxxxxx Xxxxxx of America
("Cellegy"
or
"Seller"),
and
Epsilon Pharmaceuticals Pty Ltd ACN 118 178 699, an Australian company with
an
address of 000 Xxx Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx
(“Purchaser”).
BACKGROUND
A.
Seller
owns two (2) ordinary shares (the “Shares”)
in the
issued share capital of Cellegy Australia Pty Ltd ACN 092 129 596, an Australian
corporation ("Cellegy
Australia"),
representing all of the issued and outstanding equity of Cellegy
Australia.
B.
Purchaser desires to purchase the Shares, and Seller is willing to sell the
Shares to Purchaser, on the terms and subject to the conditions set forth in
this Agreement.
AGREEMENT
THE
PARTIES AGREE AS FOLLOWS:
1.
Purchase
of the Shares; Closing and Post-Closing Payments.
1.1
Purchase
of the Shares.
At the
Closing (defined below), Seller shall sell and transfer the Shares to Purchaser,
and Purchaser shall purchase the Shares from Seller.
1.2
Purchase
Price.
Purchaser shall pay to Seller the purchase price for the Shares, by means of
wire transfer to an account designated by Seller at least 2 Business Days before
the Closing. The purchase price (the “Purchase
Price”)
shall
be paid in U.S. dollars and shall consist of the following amounts:
(a)
to be
paid at the Closing, the sum of US$1,000,000 (the “Closing
Payment”);
provided, however, that if the sum of US$1,000,000 exceeds the sum of Australian
Dollars (“AU”)
$1,366,000, calculated based on the exchange rate as quoted by the Reserve
Bank
of Australia (as reported in its related web site) for the day preceding the
Closing Date (the “Closing
Exchange Rate”),
then
the Closing Payment shall be the sum of AU1,366,000, paid in U.S. Dollars based
on such exchange rate;
(b)
an
amount, equal to the cash and cash equivalents of Cellegy Australia as of the
Closing Date, in the absence of any dispute to be paid at the Closing in U.S.
Dollars (based on the Closing Exchange Rate) (Amounts paid to Seller as provided
in this clause 1.2(b) together with amounts paid to Seller pursuant to clause
1.2(c) below shall constitute repayment in full of the amount of the Loan,
described in clause 5.7 below.);
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(c)
an
amount equal to the amount of inventory, raw materials and packaging supplies
of
Cellegy Australia that exist as of the Closing Date, based on the actual cost
value of such items as reflected on Cellegy Australia’s books and records as
determined in good faith by Seller, paid in U.S. dollars based on the Closing
Exchange Rate. Purchaser shall cooperate with Seller to determine such amount
no
later than fifteen (15) days after the Closing Date, and such amount will,
in
the absence of any dispute, be paid within three (3) business days after Seller
notifies Purchaser of the amount (Amounts paid to Seller as provided in this
clause 1.2(c) together with amounts paid to Seller pursuant to clause 1.2(b)
above shall constitute repayment in full of the amount of the Loan, described
in
clause 5.7 below.); and
(d)
to be
paid at Closing, an amount equal to U.S.$23,000.
1.3
Accounts
Receivable.
Purchaser must pay, in U.S. dollars based on the Closing Exchange Rate, an
amount equal to the cash actually collected by Cellegy Australia after the
Closing with respect to accounts receivable of Cellegy Australia that exist
as
of the Closing Date, minus a collection fee of 12.5% of the receivable
collected, such amount to be paid within three (3) business days after each
month with respect to the receivables collected during the preceding month.
Purchaser agrees to use all commercially reasonable efforts to collect such
accounts receivable at their full recorded amounts. Seller must give Purchaser
all information in its possession or control as may be reasonably necessary
to
enable Purchaser to collect such accounts receivable, and Purchaser must provide
such information to Seller as it may reasonably request concerning the amount
collected from time to time from such receivables. Purchaser will not be obliged
to commence legal proceedings for the recovery of any accounts receivable of
Cellegy Australia and Seller must not, without Purchaser's prior written consent
which consent shall not be unreasonably withheld, undertake any efforts to
collect any such accounts receivable. Following the Closing, Seller must
promptly remit to Purchaser any amount received by it for any accounts
receivable of Cellegy Australia relating to any period after the Closing.
2.
Representations
and Warranties of Cellegy.
Cellegy
represents and warrants to Purchaser that each of the following is a true and
complete statement:
2.1 Organization.
Cellegy
is a corporation duly organized under the laws of the State of Delaware.
2.2 Authorization.
Before
the Closing Date Cellegy will have taken all corporate action necessary to
authorize its consummation of the sale of the Shares and the performance of
its
obligations under this Agreement.
2.3
No
Conflict.
The
execution of this Agreement and the performance of Cellegy's obligations
hereunder will not (A) cause a violation of Cellegy's restated certificate
of
incorporation or bylaws, or (B) in any material respect cause any violation
of
any statute, rule or regulation applicable to Cellegy or of any judgment or
order of any court or governmental body. This Agreement when executed by Cellegy
will be (assuming due authorization and execution and delivery of the same
by
the Purchaser), the valid and binding obligation of Cellegy, enforceable against
Cellegy (under applicable New South Wales law) in accordance with its terms,
subject only to the effect of (a) applicable bankruptcy and other similar laws
affecting the rights of creditors generally and (b) rules of law and equity
governing specific performance, injunctive relief and other equitable remedies.
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2.4
Shares.
The
Shares are fully paid, are all of the issued shares in the capital of Cellegy
Australia and no shares have been created or issued and there are no outstanding
convertible securities, options or agreements which either now or in the future
could entitle any person to call for the issue, purchase or transfer of any
shares, debentures, notes or other securities in Cellegy Australia, or result
in
or require the creation of any Interest over any of the Shares. Seller is the
legal and beneficial owner of the Shares free of all Third Party Interests
and
on Closing Purchaser will acquire good legal and beneficial title to the Shares
free of all other Interests, subject only to the Shares being registered in
Purchaser's name in Cellegy Australia's register of members.
2.5
Intellectual
Property Rights.
Seller
has previously delivered to Purchaser a complete and accurate list and
description, to the Seller’s knowledge, of all intellectual property rights held
by Cellegy Australia ("IP
Rights").
To
Seller’s knowledge, (a) Cellegy Australia holds the IP Rights, and upon the
consummation of the actions contemplated by clause 5.6 below will hold the
Transferred IP Rights (as defined in clause 5.6), in its name as sole legal
and
beneficial owner, free of all other Interests, (b) each of the IP Rights is,
and
following the consummation of the actions contemplated by clause 5.6 below
each
of the Transferred IP Rights will be, valid and enforceable and not subject
to
any agreement which prevents, restricts or otherwise inhibits the freedom of
Cellegy Australia to use and exploit the IP Rights or the Transferred IP Rights
("Restriction")
or to
any claim, opposition, revocation, cancellation, impairment, rectification
or
amendment (collectively "IP
Claim"),
and
(c) there are no pending or threatened proceedings for any Restriction or IP
Claim.
2.6
Contracts.
Seller
has previously delivered to Purchaser a complete and accurate list, to Seller’s
knowledge, of each material agreement to which Cellegy Australia is a party
(the
"Contracts").
To
Seller’s knowledge, each Contract is enforceable against, and is being properly
performed by, the parties to it, is at arms length and within the ordinary
course of conduct of Cellegy Australia's business, contains no unusual or
onerous provisions of which Purchase is not aware, is capable of performance
by
Cellegy Australia on
time
without undue or unusual expenditure or effort and as far as Seller
is aware
is
and will continue to be profitable to Cellegy Australia.
2.7
Solvency
and Indebtedness.
To
Seller’s knowledge, (a) Cellegy Australia is able to pay its debts as and when
they fall due, (b) is not insolvent or presumed to be insolvent under any law
applicable to Cellegy Australia, and (c) no person has taken any action which
could result in it becoming, or being presumed to be, insolvent.
2.8
Litigation.
Neither
Cellegy Australia nor,
to
Seller’s knowledge, any person for whom Cellegy Australia is
or may
be liable is involved in or the subject of in any proceedings, litigation,
arbitration, mediation or other dispute or claim, or any official investigation
or audit (collectively "Proceedings").
There
are no Proceedings pending against either Cellegy Australia or, to Seller’s
knowledge, any person for whom Cellegy Australia is or may be liable and Seller
is not aware of any fact or circumstance which may give rise to any such
Proceedings.
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2.9
Licences
and Authorisations.
As far
as Seller is aware,
there is no fact, event or circumstance (including entry into and performance
of
this Agreement)
which may result in the breach of any law, agreement, regulation, government
order, registration, licence or authorisation applicable to Cellegy
Australia or
any of
its business or assets (collectively "Authorisations")
or
which may otherwise result in the revocation, suspension, cancellation,
impairment, non-renewal or variation of any Authorisation.
2.10
Brokers
Fees.
Purchaser shall not incur any liability to any third party with respect to
any
brokerage or finder's fee payable by Seller in connection with the transactions
contemplated by this Agreement.
2.11
Information.
To
Seller’s knowledge, all information set out in this Agreement and the exhibits
and schedules hereto is and will remain after Closing true, accurate and not
misleading in any material respect.
2.12
Product
Liability Insurance.
As of
the Closing, Seller shall have in effect product liability insurance relating
to
the conduct of Cellegy Australia's business for periods up to the Closing Date
during which Seller owned the Shares (including coverage with respect to all
inventory of Cellegy Australia that exists as at the Closing Date and product
liability claims made against Cellegy Australia relating to products
manufactured, sold or distributed by Cellegy Australia on or before the Closing
Date), for the periods and on the terms set forth in such insurance policy,
a copy of which (or a summary of certain terms of which) has been provided
to
Buyer before the Closing Date.
3.
Representations
and Warranties of Purchaser.
Purchaser represents and warrants to Cellegy that each of the following is
a
true and complete statement:
3.1
Organization.
Purchaser is a company duly organized under the laws of New South Wales,
Australia.
3.2 Authorization.
Before
the Closing Date Purchaser will have taken all corporate action necessary to
authorize its consummation of the purchase of the Shares and the performance
of
its obligations under this Agreement.
3.3
No
Conflict.
The
execution of this Agreement and the performance of Purchaser’s obligations
hereunder will not (A) cause a violation of Purchaser’s constitution, or (B) in
any material respect cause any violation of any statute, rule or regulation
applicable to Purchaser or of any judgment or order of any court or governmental
body. This Agreement when executed by Purchaser will be (assuming due
authorization, execution and delivery of the same by Seller), the valid and
binding obligation of Purchaser, enforceable against Purchaser (under applicable
New South Wales law) in accordance with its terms, subject only to the effect
of
(a) applicable bankruptcy and other similar laws affecting the rights of
creditors generally and (b) rules of law and equity governing specific
performance, injunctive relief and other equitable remedies.
3.4
Brokers
Fees.
Seller
shall not incur any liability to any third party with respect to any brokerage
or finder's fee payable by Purchaser in connection with the transactions
contemplated by this Agreement.
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4.
Acknowledgments
and Indemnities.
4.1
Acknowledgments.
Purchaser acknowledges that it has had an opportunity to ask questions and
receive answers from Seller and Cellegy Australia regarding the business,
properties, prospects and financial condition of Cellegy Australia. Each party
acknowledges that the other party does not make any representation or warranty
concerning the tax consequences of the transactions contemplated by this
Agreement.
4.2
Indemnities.
(a)
During the period of time that the representations and warranties of Purchaser
and Seller survive as provided in clause 9 of this Agreement, Seller indemnifies
Purchaser (for itself and as trustee for Cellegy Australia) against
all proceedings, actions, claims, demands, losses, liabilities, damages, costs
and expenses (“Losses”)
which
may be made, brought against, suffered or incurred by Purchaser or Cellegy
Australia, and arising directly or indirectly out of or in connection with
any
of Seller's warranties or representations being untrue, inaccurate or misleading
in any material respect, or any material breach of this Agreement by Seller
that
is not cured without
loss to Purchaser within
thirty (30) days of notice from Purchaser to Seller describing in reasonable
detail the alleged breach. During the period of time that the representations
and warranties of Purchaser and Seller survive as provided in clause 9 of this
Agreement, Purchaser indemnifies Seller against all Losses which may be made,
brought against, suffered or incurred by Seller, and arising directly or
indirectly out of or in connection with any of Purchaser's warranties or
representations being untrue, inaccurate or misleading in any material respect,
or any material breach of this Agreement by Purchaser that is not cured without
loss to Seller within thirty (30) days of notice from Seller to Purchaser
describing in reasonable detail the alleged breach.
(b)
The
indemnities contained in this clause are continuing, separate and independent
obligations of the parties from their other obligations, and survive the
termination of this Agreement, for the period provided in clause 9 of this
Agreement for survival of representations and warranties of the parties.
(c)
In no
event shall either party be liable to the other party for punitive or
consequential damages. The indemnification obligations in this Section shall
be
the sole remedy for either party arising from a breach by the other party of
representations, warranties or covenants made in this Agreement.
(d)
The
indemnification provided for in this Section shall not apply unless and until
the aggregate Losses for which one or more indemnified persons seeks or has
sought indemnification hereunder exceeds a cumulative aggregate amount of
$50,000 (the “Basket”),
in
which event the indemnification obligations shall apply to all Losses in excess
of the Basket.
(e)
A
party seeking indemnification hereunder (“Indemnitee”)
will
give prompt written notice to the party from which indemnification is sought
(“Indemnitor”)
of any
claim which it discovers or of which it receives notice after the Closing and
which might give rise to a right of indemnification by it against Indemnitor
under this Agreement (“Claim”),
stating (to the extent known) the nature, basis and amount thereof. All Claims
must be submitted before the expiration of the Survival Period. In the case
of
any Claim by any third party with respect to which Indemnitor may have liability
under this Agreement, Indemnitor shall be entitled (at its own cost) to
participate in the defense thereof and, to the extent desired by Indemnitor,
to
assume the defense thereof, in which case the Indemnitor must act reasonably
(having regard to the business reputation of the Indemnitee) in participating
in
or assuming the defense of the Claim. After written notice from Indemnitor
to
Indemnitee of its election to assume such defense, Indemnitor will not be liable
to any Indemnitee for any legal or other expenses subsequently incurred by
such
Indemnitee in connection with its participation in the defense of the Claim,
other than reasonable costs of assistance or investigation, unless Indemnitor
does not actually assume the defense of the Claim following Indemnitor's notice
of such election. The parties will render to each other such assistance as
may
reasonably be required of each other in order to ensure proper and adequate
defense of any such third party Claim. Indemnitor will not agree to a compromise
or settlement of any such third party Claim that would require the payment
of
any amounts by Indemnitee without the written consent of
Indemnitee.
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5.
Covenants.
5.1
Consummation
of Transaction.
Cellegy
and Purchaser will cooperate and use their good faith efforts to satisfy the
conditions to closing described below and, upon satisfaction of such conditions,
to consummate the transactions contemplated hereby.
5.2
Taxes.
Purchaser agrees to pay any sales, use or other taxes (other than United States
capital gain or income or similar taxes imposed on Seller), including any stamp
duty taxes, arising out of the sale of the Shares and the transactions
contemplated by this Agreement. If Seller is obligated to pay any such taxes
for
which Purchaser is responsible pursuant to the preceding sentence, then Seller
may notify Purchaser and Purchaser shall either pay the taxes or, with Seller’s
consent, promptly reimburse Seller after the payment of such taxes. Seller
and
Purchaser shall cooperate with respect to any filings or actions that may be
necessary under applicable laws or tax treaties.
5.3
Cooperation.
Purchaser agrees that Purchaser will, and Purchaser will cause Cellegy Australia
to, cooperate with Seller, to provide any books and records, information or
assistance that Seller reasonably requests, after the Closing Date, relating
to
Cellegy Australia’s financial statements for any period before the Closing Date,
in connection with preparation of Seller’s financial statements, filings with
the Securities and Exchange Commission, or other requirements of applicable
law.
Without limiting the foregoing, Purchaser shall, but only to the extent to
which
it is reasonable to require it to do so: (a) cause Cellegy Australia to record
such inter-company entries as Seller requests pursuant to executed agreements,
(b) prepare Cellegy Australia’s financial statements accurately and in a timely
manner (including timely with regard to the preparation of Seller’s audited
financial statements and reporting obligations), (c) prepare and deliver all
required related account analysis relating to Cellegy Australia’s financial
statements, (d) provide all bank reconciliations, (e) respond in good faith
to
any questions that Seller or its independent accountants may have in connection
with the financial statements of Cellegy Australia or the preparation of
Seller’s consolidated financial statements and (f) execute such management
certificates as Seller may request concerning the accuracy of Cellegy
Australia’s financial statements, Cellegy Australia’s controls and procedures
and other matters similar to the matters addressed in certifications provided
by
Seller’s officers in periodic reports filed by Seller with the Securities and
Exchange Commission. After the Closing Date Seller must
give
to Purchaser all information and assistance that Purchaser or Cellegy Australia
reasonably requests to comply with, maintain or obtain any Authorisations or
otherwise to enable Cellegy Australia to use and exploit the IP Rights and
the
Transferred IP Rights and to conduct its business.
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5.4
Cellegy's
Obligations at Closing.
At
Closing, Seller must:
(a)
deliver
to Purchaser:
(i)
transfers of the Shares duly executed by the registered holders in favour of
Purchaser together with the share certificates for the Shares;
(ii)
the
Books and Records;
(iii)
all
other assets of Cellegy Australia which are in its or Seller's possession or
control; and
(iv)
the
executed resignations of such directors and other officers of Cellegy Australia
as are required by Purchaser, effective from the close of the meeting referred
to in clause 5.4(b);
(b)
cause
a meeting of the directors of Cellegy Australia to be held and to obtain at
that
meeting:
(i)
the
resignation of such directors and other officers of Cellegy Australia as
Purchaser directs;
(ii)
the
appointment of those persons who Purchaser nominates, and who have consented
in
writing to act, as directors and secretary of Cellegy Australia;
(iii)
approval for registration of the transfers of the Shares to Purchaser, subject
to payment of any stamp duty; and
(iv)
cancellation of the existing share certificates for the Shares and the issue
of
new certificates for the Shares in favour of Purchaser; and
(c)
do
all other things which are required by this Agreement to be done by Seller
at
the Closing, or which are reasonably required by Purchaser to give it the full
possession and benefit of the Shares.
5.5 Ownership
of Intellectual Property After the Closing.
After
the Closing, neither party will take any action that, directly or indirectly,
is
inconsistent with the other party’s ownership of intellectual property owned by
such party, and shall not directly or indirectly contest the validity of or
the
other party’s right in such intellectual property and shall not claim adversely
to the other party, or assist any third party in attempting to claim adversely
to the other party, with regard to such ownership. To the extent consistent
with
Cellegy Australia's ownership and exploitation of the IP Rights and the
Transferred IP Rights, each party agrees that it will not challenge the title
of
the other party to the patents claimed to be owned by the other party, oppose
any issuance of a patent to the other party with respect thereto or challenge
the validity of any such patent if issued, and will not cooperate with any
third
party in connection with any challenges to such rights.
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5.6 Assignment
of Certain Intellectual Property Rights and Agreements.
As soon
as practicable after the Closing, Seller will procure the transfer and
assignment to Cellegy Australia of the patents and other intellectual property
rights set forth on a mutually agreed-upon schedule delivered by Seller to
Purchaser before the Closing (the “Transferred
IP Rights”).
Seller will cooperate with Purchaser after the Closing with the goal of
obtaining either the assignment of Seller’s existing distributor agreements
relating to Singapore and Korea or the execution of new distributor agreements
in favour of Cellegy Australia regarding Singapore and Korea.
5.7 Intercompany
Loans.
Seller
acknowledges that the whole of the intercompany loan owed by Cellegy Australia
to Seller (“Loan”)
shall
be repaid and discharged at the Closing by application of payments received
by
Seller pursuant to clauses 1.2(b) and 1.2(c) above, so that there will be no
amount owing by Cellegy Australia to Seller after Seller has received these
payments. Neither party shall have any liability to the other party after the
Closing for any Losses (including taxes) or claims that may arise after the
Closing as a consequence of the Loan being repaid and discharged in the manner
contemplated by this Agreement.
5.8 Pre-Closing
Notices.
At
least 2 Business Days before the Closing Date, Seller must give Purchaser full
and accurate written details of:
(a)
all
officers of Cellegy Australia, and each power of attorney granted by Cellegy
Australia to any of those officers, to Seller or to any of the Seller's
associates which has not expired or been revoked;
(b)
each
bank or other financial institution with which Cellegy Australia has an account,
safety deposit box or deposit; and
(c)
the
names of all persons authorised to draw on or have access to those accounts,
safety deposit boxes and deposits.
6.
Closing.
The
closing of the transactions contemplated by this Agreement (the "Closing")
will
occur promptly upon satisfaction or waiver of all closing conditions, but
(assuming satisfaction or waiver of all closing conditions) in all events not
later than April 10, 2006 (the date on which the Closing occurs referred to
as
the "Closing
Date"),
unless one or more regulatory or governmental consents or approvals that is
required to be obtained before the Closing has not been obtained through no
fault of any party, in which case the Closing shall occur as soon as reasonably
possible after such consent or approval has been obtained. At the Closing,
Seller shall sell and deliver the Shares to Purchaser, and Purchaser shall
pay
the amounts required under clauses 1.2(a), (b) and (d) to Seller.
8
7.
Purchaser’s
Closing Conditions.
Purchaser’s obligations to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each of the following conditions,
except as Purchaser may waive in writing.
7.1
Representations,
Warranties and Covenants.
Seller’s representations and warranties made in this Agreement shall remain true
in all material respects as if made on the Closing Date, and Seller shall have
performed in all material respects all of the terms and obligations of this
Agreement that are required to be performed by Seller before the Closing.
7.2
Third
Party Consents.
All
third party consents that are required in order to sell the Shares to Purchaser
shall have been obtained.
7.3
No
Litigation.
No
action, claim or proceeding shall have been brought or threatened against any
party seeking to challenge or prohibit the transactions contemplated by this
Agreement.
7.4
Compliance
Certificate.
Purchaser shall have received a certificate with respect to satisfaction of
the
conditions set forth in Sections 7.1, 7.2 and 7.3, signed on behalf of Seller
by
one or more duly authorized representatives of Seller.
8.
Seller's
Closing Conditions.
Seller’s obligations to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each of the following conditions,
except as any Seller may waive in writing with respect to itself.
8.1
Representations,
Warranties and Covenants.
Purchaser’s representations and warranties made in this Agreement shall remain
true in all material respects as if made on the Closing Date, and Purchaser
shall have performed in material respects and be in material compliance with
all
of the terms and obligations of this Agreement that are required to be performed
by Purchaser at or before the Closing Date.
9.
Survival
of Representations and Warranties.
The
representations and warranties made by Purchaser and Seller in this Agreement
shall survive the Closing for a period of sixty (60) days after the Closing
(the
“Survival
Period”),
after
which time they shall terminate and be of no further force or effect except
in
respect of matters which have been the subject of a claim made by one party
to
the other during the Survival Period pursuant to the procedures set forth in
Section 4.2 of this Agreement governing indemnification.
10. Confidentiality;
Disclosure.
Each
party may make such press releases or other public disclosures regarding this
Agreement and the transactions contemplated hereby as they deem appropriate;
and
each party shall use all reasonable efforts to provide prior notice to the
other
party of such press releases or disclosures. Without limiting the foregoing,
Cellegy may include information concerning the transactions contemplated by
the
Agreement and related matters in filings that Cellegy makes with the U.S.
Securities and Exchange Commission or other federal and state regulatory
authorities. Purchaser agrees to cooperate with Cellegy to provide such
information (including without limitation any financial information relating
to
Cellegy Australia) that may be required under US law.
9
11.
Governing
Law; Consent to Jurisdiction.
This
Agreement and any disputes arising out of or relating to this Agreement, shall
be governed by the laws of New South Wales. The parties irrevocably and
unconditionally submit to the jurisdiction of the courts of New South Wales
and
any courts which have jurisdiction to hear appeals from any of those courts
and
waive any right to object to any proceedings being brought in those courts
for
any reason.
12.
Miscellaneous
12.1
Notices.
Every
notice, consent and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed given if delivered personally
or by commercial messenger service, by reputable overnight mail or similar
courier services, mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice), provided, that notices sent by ordinary
mail will not be deemed guaranteed however, received:
if
to
Seller, to:
Cellegy
Pharmaceuticals, Inc.
0000
Xxxxxxx xxxx, Xxxx. 00
Xxxxxxxxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
Fax
No.:
(000)-000-0000
With
a
copy to:
C.
Xxxxx
Xxxxx
Xxxxxxxxx
Genshlea Chediak
000
Xxxxxxx Xxxx, 00xx
xxxxx
Xxxxxxxxxx,
XX 00000
Fax
No.:
000-000-0000
If
to
Purchaser, to:
Epsilon
Pharmaceuticals Pty Limited
000
Xxx
Xxxxx Xxxx Xxxx, Xxxxxxxxx
Xxx
Xxxxx
Xxxxx 0000, Xxxxxxxxx
Attention:
Xxxxx Xxxxxxxx
Fax
No.:
(000) 00000000
Notices
shall be deemed delivered upon receipt if delivered personally or by messenger
service, two (2) business days after delivery with a reputable courier service
for delivery as soon as possible to the other party, seven (7) days after
deposit in the mail if sent by registered or certified mail, and one business
day after transmission by facsimile.
10
12.2
Interpretation
and Definitions.
(a)
The
words "include," "includes" and "including” when used herein shall be deemed in
each case to be followed by the words "without limitation." The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
(b)
"Books and Records" means originals and copies in machine readable or printed
form of all registers, books, reports, correspondence, files, records, accounts,
documents and other material, in the possession or control of Seller or Cellegy
Australia,
about or
used in connection with Cellegy Australia, including:
(i)
all
available copies of Cellegy Australia's constitution or other constituent
documents;
(ii)
the
common seal and duplicate seals of Cellegy Australia;
(iii)
the
certificates of incorporation of Cellegy Australia;
(iv)
certificates of registration of any business names or trade names registered
in
the name of Cellegy Australia;
(v)
executed and stamped originals of the Contracts; and
(vi)
all
certificates of registration and other documents of title for the IP
Rights.
(c)
"Business Day" means a day on which banks in New South Wales and Pennsylvania
are open for general banking business, excluding Saturdays and
Sundays.
(d)
"Interest" means any security interest, lease, license, option, voting
arrangement, easement, covenant, novation, restriction, interest under any
agreement, interest under any trust, or other right, equity, entitlement or
other interest of any nature.
(e)
"Third Party Interest" means an Interest held by a third party.
12.3
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to
the
other party, it being understood that all parties need not sign the same
counterpart.
12.4
Entire
Agreement; Assignment.
This
Agreement (including any exhibits or schedules hereto) constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings both written and oral, among
the parties with respect to the subject matter hereof; (b) is not intended
to
confer upon any other person any rights or remedies hereunder; and (c) may
not
be assigned unless agreed to by the other parties hereto, except that Cellegy
may assign its rights and delegate its obligations hereunder to any person
or
entity that acquires all or substantially all of the business of Cellegy,
whether by merger, purchase of assets or otherwise.
11
12.5
Severability.
In the
event that any provision of this Agreement or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force
and
effect and the application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to
the
extent possible, the economic, business and other purposes of such void or
unenforceable provision.
12.6
Other
Remedies.
Except
as otherwise provided herein, any and all remedies herein expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other remedy.
12.7
Rules
of Construction.
The
parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against
the
party drafting such agreement or document.
12.8
Expenses;
Attorneys Fees.
Each
party will be responsible for its own fees and expenses in connection with
the
proposed transaction. Neither party has entered into, and will not enter into,
any agreement that would result in a broker's or finder's fee pertaining to
the
proposed transaction.
12.9
Further
Assurances.
Each
party shall promptly execute all documents and do all things that any other
party from time to time reasonably requires of it to effect, perfect or complete
the provisions of this Agreement and any transaction contemplated by it.
12.10
Prior
Agreement.
At or
before, and effective upon, the Closing, Seller and Purchaser must procure
that
the Stock Purchase Agreement dated as of April 14, 2000 entered into by, among
other parties, Cellegy, Quay Pharmaceuticals Pty. Ltd., Richcone Pty Ltd CAN
064
469 861, and Cellegy Australia (the “Prior
Agreement”),
is
terminated and superseded in its entirety, such that no provisions of, or
obligations set forth in, the Prior Agreement shall have any further force
or
effect notwithstanding any language in the Prior Agreement to the contrary.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
12
IN
WITNESS WHEREOF, the parties have executed this Share Purchase Agreement as
of
the date first written above.
| SELLER | ||||
|
CELLEGY
PHARMACEUTICALS, INC.
|
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
|
|
||||
| Its: | VP Corporate Development | |||
|
|
||||
| PURCHASER | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
|
|
||||
| Its: | Director | |||
|
|
||||
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