Registration Rights Agreement
This
Registration Rights Agreement (the “Agreement”) is made as of
the date set forth below between Symbollon Pharmaceuticals, Inc., a Delaware
corporation (the “Company”) and the investors identified on the
signature page hereto (“Holders”). Capitalized terms
used and not defined herein shall have the respective meanings ascribed to
them
in the Securities Purchase Agreement dated as of the date hereof by and between
the Company and the Holders (the “Purchase
Agreement”).
RECITALS
WHEREAS,
subject to the terms and conditions of the Purchase Agreement, the Company
has
sold and issued to the Holders and the Holders have purchased from the Company
1,071,429 shares (the “Shares”) of the common stock of the
Company, $0.001 par value per share (the “Common Stock”) and
warrants (the “Warrants”) to purchase up to 1,071,429 shares of
Common Stock (the “Warrant Shares” and together with the Common
Stock and Warrants, the “Securities”), to the Holders in a
private placement (the “Offering”).
NOW,
THEREFORE, the parties hereto agree as follows:
1. Registration
Procedures and Expenses. The Company shall:
(a) subject
to receipt of reasonably necessary information from the holder or holders as
the
case may be, from time to time, of the Registrable Securities (as defined below)
(the “Holder” or “Holders”), prepare and file with the Securities and Exchange
Commission (“SEC”), within sixty (60) days after the Closing
Date (the “Required Filing Date”), a Registration Statement on
Form SB-2 (except if the Company is not then eligible to register on
Form SB-2, in which case such registration shall be on another appropriate
form
in accordance herewith) (collectively, together with any registration statement
filed pursuant to clause (b) below, the “Registration
Statements”) to enable the resale by the Holders from time to time of
(x) the Shares issuable, (y) the Warrant Shares issuable and (z) the shares
of
Common Stock issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the foregoing
(collectively, the “Registrable Securities”);
(b) use
its
best efforts, subject to receipt of necessary information from each Holder,
to
cause each Registration Statement to become effective as soon as practicable,
but in no event later than one hundred twenty (120) days after the applicable
Required Filing Date;
(c) use
its
best efforts to prepare and file with the SEC such amendments and supplements
to
the Registration Statements and the Prospectus as may be necessary to keep
each
Registration Statement current and effective for a period ending on the earlier
of (1) the second anniversary of the Closing, (2) the date on which the Holders
may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under
the
Securities Act or any successor rule (“Rule 144”) or (3) such
time as all Registrable Securities purchased by such Holder in the Offering
have
been sold pursuant to a registration statement or Rule 144 (the
“Effectiveness Period”), and to notify each Holder promptly
upon each Registration Statement and each post-effective amendment thereto,
being declared effective by the SEC;
(d) furnish
to any Holder such number of copies of the Registration Statements and the
Prospectuses (including supplemental prospectuses) as the Holder may
reasonably request, in order to facilitate the public sale or other disposition
of all or any of the Registrable Securities by the Holder;
(e) file
documents required of the Company for normal blue sky clearance in states
specified in writing by any Holder; provided, however, that the Company shall
not be required to qualify to do business or consent to service of process
in
any jurisdiction in which it is not now so qualified or has not so
consented;
(f) bear
all
expenses (other than underwriting discounts and commissions, if any) in
connection with the procedures in paragraph (a) through (e) of this Section
1
and the registration of the Registrable Securities pursuant to the Registration
Statements;
(g) advise
the Holders, promptly after it shall receive notice or obtain knowledge of
the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of each Registration Statement or of the initiation of any proceeding for that
purpose; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order or to obtain its withdrawal at the earliest
possible moment if such stop order should be issued; and
(h) with
a
view to making available to the Holders the benefits of Rule 144 and any other
rule or regulation of the SEC that may at any time permit the Holders to sell
Registrable Securities to the public without registration, the Company covenants
and agrees to use its commercially reasonable efforts to: (i) make and keep
public information available, as those terms are understood and defined in
Rule
144, until the earlier of (A) such date as all of the Holder’s Registrable
Securities may be resold pursuant to Rule 144(k) or any other rule of similar
effect or (B) such date as all of the Holders’ Registrable Securities shall have
been resold; (ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and under the
Exchange Act; and (iii) furnish to each Holder, (A) a written statement by
the Company that it has complied with the reporting requirements of the
Securities Act and the Exchange Act, (B) a copy of the Company’s most recent
Annual Report on Form 10-KSB or Quarterly Report on Form 10-QSB, and (C) such
other information as may be reasonably requested in order to avail the Holder
of
any rule or regulation of the SEC that permits the selling of any such
Registrable Securities without registration.
It
shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 1 that each Holder shall furnish to the Company a
completed Questionnaire in the form attached hereto as Exhibit
A.
The
Company understands that each Holder disclaims being an underwriter, but
acknowledges that a determination by the SEC that the Holder is deemed an
underwriter shall not relieve the Company of any obligations it has
hereunder.
2. Transfer
of Registrable Securities After Registration; Suspension.
(a) Each
Holder agrees that it will not effect any Disposition of the Securities that
would constitute a sale within the meaning of the Securities Act other than
in
transactions exempt from the registration requirements of the Securities Act
or
as contemplated in any Registration Statement and as described below, and that
it will promptly notify the Company of any material changes in the information
set forth in the Registration Statements regarding the Holder or its plan of
distribution.
2
(b) Except
in
the event that paragraph (c) below applies, the Company shall: (i) if deemed
necessary by the Company, prepare and file from time to time with the SEC a
post-effective amendment to each Registration Statement or a supplement to
the
related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, and so that, as thereafter delivered
to purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (ii) provide the Holders copies of any documents filed pursuant
to Section 2(b)(i); and (iii) upon request, inform each Holder who so requests
that the Company has complied with its obligations in Section 2(b)(i) (or that,
if the Company has filed a post-effective amendment to any Registration
Statement which has not yet been declared effective, the Company will notify
the
Holder to that effect, will use its best efforts to secure the effectiveness
of
such post-effective amendment as promptly as possible and will promptly notify
the Holder pursuant to Section 2(b)(i) hereof when the amendment has become
effective).
(c) Subject
to paragraph (d) below, in the event: (i) of any request by the SEC or any
other
federal or state governmental authority during the period of effectiveness
of
any Registration Statement for amendments or supplements to the Registration
Statement or related Prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of
any
stop order suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose; (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction or the initiation of any proceeding for such purpose; or (iv)
of any event or circumstance which necessitates the making of any changes in
any
Registration Statement or Prospectus, or any document incorporated or deemed
to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and that in the case of the Prospectus,
it
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; then the Company shall promptly deliver a certificate in writing
to
the Holders (the “Suspension Notice”) to the effect of the
foregoing and, upon receipt of such Suspension Notice, the Holders will refrain
from selling any Registrable Securities pursuant to the Registration Statement
(a “Suspension”) until the Holders are advised in writing by
the Company that the current Prospectus may be used, and has received copies
of
any additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Prospectus. In the event of any
Suspension, the Company will use its reasonable best efforts to cause the use
of
the Prospectus so suspended to be resumed as soon as reasonably practicable
after delivery of a Suspension Notice to the Holders. In addition to
and without limiting any other remedies (including, without limitation, at
law
or at equity) available to the Holders, the Holders shall be entitled to
specific performance in the event that the Company fails to comply with the
provisions of this Section 2(c). The Holders covenant that from the
date hereof they will maintain in confidence the receipt and content of any
Suspension Notice provided in accordance with this paragraph (c) in
accordance with and subject to Section 4.6 of Annex I to the Securities Purchase
Agreement.
(d) Notwithstanding
the foregoing paragraphs of this Section 2, the Company shall use its
commercially reasonable efforts to ensure that any Suspension shall not exceed
thirty (30) days.
3
(e) If
a
Suspension is not then in effect, the Holders may sell Registrable Securities
under each Registration Statement, provided that they comply with any applicable
prospectus delivery requirements. Upon receipt of a request therefor,
the Company will provide an adequate number of current Prospectuses to each
Holder and to any other parties requiring such Prospectuses.
(f) In
the
event of a sale of Registrable Securities by a Holder, unless such requirement
is waived by the Company in writing, the Holder must also deliver to the
Company’s transfer agent, with a copy to the Company, a Certificate of
Subsequent Sale substantially in the form attached hereto as Exhibit A,
so that the Registrable Securities may be properly transferred.
(g) The
Company agrees that it shall, immediately prior to each Registration Statement
being declared effective, deliver to its transfer agent an opinion letter of
counsel, opining that at any time the Registration Statement is effective,
the
transfer agent shall issue, in connection with the sale of the Registrable
Securities, certificates representing such Registrable Securities without
restrictive legend, provided the Registrable Securities are to be sold pursuant
to the Prospectus contained in the Registration Statement and the transfer
agent
receives a Certificate of Subsequent Sale in the form attached hereto as
Exhibit B. Upon receipt of such opinion, the Company shall
cause the transfer agent to confirm, for the benefit of the Holder, that no
further opinion of counsel is required at the time of transfer in order to
issue
such Registrable Securities without restrictive legend.
The
Company shall cause its transfer agent to issue a certificate without any
restrictive legend to a purchaser of any Registrable Securities from the Holder,
if (a) the sale of such Registrable Securities is registered under the
applicable Registration Statement (including registration pursuant to Rule
415
under the Securities Act) and a Holder has delivered a Certificate of Subsequent
Sale to the Transfer Agent; (b) the Holder has provided the Company with an
opinion of counsel, in form, substance and scope customary for opinions of
counsel in comparable transactions, to the effect that a public sale or transfer
of such Registrable Securities may be made without registration under the
Securities Act; or (c) such Registrable Securities are sold in compliance with
Rule 144 under the Securities Act. In addition, the Company shall, at
the request of a Holder, remove the restrictive legend from any Registrable
Securities held by the Holder following the expiration of the holding period
required by Rule 144(k) under the Securities Act (or any successor
rule).
3. Indemnification. For
the purpose of this Section 3:
(a) the
term
“Selling Shareholder” shall mean each Holder and each person,
if any, who controls the Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act;
(b) the
term
“Registration Statement” shall include any final Prospectus,
exhibit, supplement or amendment included in or relating to, and any document
incorporated by reference in, the applicable Registration Statement (or deemed
to be a part thereof) referred to in Section 1; and
(c) the
term
“untrue statement” shall mean any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in the applicable
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, not misleading.
4
(d) (i) The
Company agrees to indemnify and hold harmless each Selling Shareholder from
and
against any losses, claims, damages or liabilities to which such Selling
Shareholder may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) any untrue statement of
a
material fact contained in any Registration Statement, (ii) any inaccuracy
in
the representations and warranties of the Company contained in the Agreement
or
the failure of the Company to perform its obligations hereunder or (iii) any
failure by the Company to fulfill any undertaking included in any Registration
Statement, and the Company will reimburse such Selling Shareholder for any
reasonable legal expense or other actual accountable out of pocket expenses
reasonably incurred in investigating, defending or preparing to defend any
such
action, proceeding or claim; provided, however, that the Company shall not
be
liable in any such case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Shareholder specifically for
use
in preparation of the applicable Registration Statement, or any inaccuracy
in
representations made by such Selling Shareholder in the Holder Questionnaire
or
the failure of such Selling Shareholder to comply with its covenants and
agreements contained in Sections 4.1, 4.2, 4.3, 4.4 of the Securities Purchase
Agreement or Section 2 hereof or any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to the Selling
Shareholder prior to the pertinent sale or sales by the Selling
Shareholder.
(ii) Each
Holder agrees to indemnify and hold harmless the Company (and each person,
if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, each officer of the Company who signs any Registration Statement and each
director of the Company) from and against any losses, claims, damages or
liabilities to which the Company (or any such officer, director or controlling
person) may become subject (under the Securities Act or otherwise), insofar
as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, (i) any failure to comply
with
the covenants and agreements contained in Sections 4.1, 4.2, 4.3, 4.4 of the
Securities Purchase Agreement or Section 2 hereof, or (ii) any untrue statement
of a material fact contained in the Registration Statement if, and only if,
such
untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Holder specifically for use in
preparation of the Registration Statement, and the Holder will reimburse the
Company (or such officer, director or controlling person), as the case may
be,
for any reasonable legal expense or other actual accountable out-of-pocket
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim. The obligation to indemnify
shall be limited to the net amount of the proceeds received by a Holder from
the
sale of the Registrable Securities pursuant to the applicable Registration
Statement.
(iii) Promptly
after receipt by any indemnified person of a notice of a claim or the beginning
of any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this Section 3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the commencement
of such action, but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party under
this Section 3 (except to the extent that such omission materially and adversely
affects the indemnifying party’s ability to defend such action) or from any
liability otherwise than under this Section 3. Subject to the
provisions hereinafter stated, in case any such action shall be brought against
an indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall elect by written notice delivered
to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from
the indemnifying person to such indemnified person of its election to assume
the
defense thereof (unless it has failed to assume the defense thereof and appoint
counsel reasonably satisfactory to the indemnified party), such indemnifying
person shall not be liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection with the defense
thereof; provided, however, that if there exists or shall exist a conflict
of
interest that would make it inappropriate, in the reasonable opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel
at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) for all indemnified
parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement; provided that such
consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect
any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could reasonably have been a party and indemnification
could have been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified person from
all
liability on claims that are the subject matter of such proceeding.
5
(iv) If
the
indemnification provided for in this Section 3 is unavailable to or insufficient
to hold harmless an indemnified party under paragraphs 3(d)(i) or 3(d)(ii)
above
in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and a Holder on the other in connection
with the statements or omissions or other matters which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, in the case of an untrue
statement, whether the untrue statement relates to information supplied by
the
Company on the one hand or the Holder on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement. The Company and the Holder agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the
Holder shall not be required to contribute any amount in excess of the amount
by
which the gross amount received by the Holder from the sale of the Registrable
Securities to which such loss relates exceeds the amount of any damages which
the Holder has otherwise been required to pay by reason of such untrue
statement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Holder’s obligations in this subsection to
contribute are several in proportion to their sales of Registrable Securities
to
which such loss relates and not joint.
The
parties to this Agreement hereby acknowledge that they are sophisticated
business persons who were represented by counsel during the negotiations
regarding the provisions hereof including, without limitation, the provisions
of
this Section 3, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this
Section 3 fairly allocate the risks in light of the ability of the parties
to
investigate the Company and its business in order to assure that adequate
disclosure is made in each Registration Statement as required by the Securities
Act and the Exchange Act.
4. Termination
of Conditions and Obligations. The conditions precedent
imposed by Section 4 of the Securities Purchase Agreement or this
Section 4 upon the transferability of the Registrable Securities shall cease
and
terminate as to any particular number of the Registrable Securities when such
Registrable Securities shall have been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the intended
method of disposition set forth in the Registration Statement covering such
Registrable Securities or at such time as an opinion of counsel satisfactory
to
the Company shall have been rendered to the effect that such conditions are
not
necessary in order to comply with the Securities Act.
6
5. Information
Available. So long as any Registration Statement is
effective covering the resale of Registrable Securities owned by a Holder,
the
Company will furnish (or, to the extent such information is available
electronically through the Company’s filings with the SEC, the Company will make
available) to the Holder:
(a) as
soon
as practicable after it is available, one copy of (i) its Annual Report to
Shareholders (which Annual Report shall contain financial statements audited
in
accordance with generally accepted accounting principles by an independent
registered public accounting firm, and (ii) if not included in substance in
the
Annual Report to Shareholders, its Annual Report on Form 10-KSB (the foregoing,
in each case, excluding exhibits);
(b) upon
the
reasonable request of the Holder, all exhibits excluded by the parenthetical
to
subsection (a)(ii) of this Section 5 as filed with the SEC and all other
information that is made available to shareholders; and
(c) upon
the
reasonable request of the Holder, an adequate number of copies of the
Prospectuses to supply to any other party requiring such Prospectuses; and
the
Company, upon the reasonable request of the Holder, will meet with the Holder
or
a representative thereof at the Company’s headquarters during the Company’s
normal business hours to discuss all information relevant for disclosure in
the
Registration Statement covering the Registrable Securities and will otherwise
reasonably cooperate with the Holder conducting an investigation for the purpose
of reducing or eliminating the Holder’s exposure to liability under the
Securities Act, including the reasonable production of information at the
Company’s headquarters; provided, that the Company shall not be required to
disclose any confidential information to or meet at its headquarters with the
Holder until and unless the Holder shall have entered into a confidentiality
agreement, in form and substance reasonably satisfactory to the Company, with
the Company with respect thereto.
6. Piggy-Back
Registrations.
(a) If
at any time during the Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities and the
Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form
S-4
or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection
with
any acquisition of any entity or business or equity securities issuable in
connection with the stock option or other employee benefit plans, then the
Company shall give prompt written notice to all Holders of Registrable
Securities of its intention to do so and of such Holders’ rights under this
Section 6. Upon the written request of any such Holder made within 15
days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will use its best efforts to effect the registration under the Securities Act
of
all Registrable Securities which the Company has been so requested to register
by the Holders thereof, to the extent requisite to permit the disposition of
the
Registrable Securities to be so registered; provided that (i) if, at any
time after giving written notice of its intention to register any securities
and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it,
the
Company may, at its election, give written notice of such determination to
each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the registration expenses
in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in
the
Company’s registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate
in
combined primary and secondary offerings. If a registration requested
pursuant to this Section 6(a) involves an underwritten public offering, any
Holder of Registrable Securities requesting to be included in such registration
may elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such securities
in
connection with such registration. The Company will pay all
registration expenses in connection with each registration of Registrable
Securities.
7
(b) If
a registration pursuant to this Section 6 involves an underwritten offering
and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering, so as to be likely to have an
adverse effect on the price, timing or distribution of the securities offered
in
such offering as contemplated by the Company (other than the Registrable
Securities), then the Company will include in such registration (i) first,
100%
of the securities the Company proposes to sell and (ii) second, to the extent
of
the number of Registrable Securities requested to be included in such
registration pursuant to this Section 6 which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above,
the number of Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of shares of Registrable
Securities then held by each such Holder (provided that any shares thereby
allocated to any such Holder that exceed such Holder’s request will be
reallocated among the remaining requesting Holders in like manner).
7. Limits
on Additional Issuances. Except for the issuance of stock
options under the Company’s stock option plans, the issuance of common stock
under the Company’s employee stock purchase plan or upon exercise of
outstanding options and warrants and the offering contemplated hereby, the
Company will not, for a period of six (6) months following the Closing Date,
offer for sale or sell any securities unless, in the opinion of the Company’s
counsel, such offer or sale does not jeopardize the availability of exemptions
from the registration and qualification requirements under applicable securities
laws with respect to the Offering. The foregoing shall not apply to
securities issued in connection with any acquisition, including by way of
merger, or purchase of stock or all or substantially all of the assets of any
third party. Except for the issuance of stock options under the
Company’s stock option plans, the issuance of common stock under the Company’s
employee stock purchase plan or upon exercise of outstanding options and
warrants, the issuance of common stock purchase warrants, and the offering
contemplated hereby, the Company has not engaged in any such offering during
the
six (6) months prior to the date of this agreement. The foregoing
provisions shall not prevent the Company from filing a “shelf” registration
statement pursuant to Rule 415 under the Securities Act, but the foregoing
provisions shall apply to any sale of securities thereunder.
8. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be delivered (A) if within the United States, by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if from outside the United
States, by International Federal Express (or comparable service) or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, upon the Business Day received, (ii) if delivered
by
nationally recognized overnight carrier, one (1) Business Day after timely
delivery to such carrier, (iii) if delivered by International Federal Express
(or comparable service), two (2) Business Days after timely delivery to such
carrier, (iv) if delivered by facsimile, upon electric confirmation of receipt
and shall be addressed as follows, or to such other address or addresses as
may
have been furnished in writing by a party to another party pursuant to this
paragraph:
8
(a) if
to the
Company, to:
Symbollon
Pharmaceuticals, Inc.
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attention: President
Telephone:(000)
000-0000
with
a
copy to:
Xxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx LLP
0000
Xxxxxxxx (00xx
Xxxxx)
Xxx
Xxxx, XX 00000
Attn: Xxxxxx
Xxxxxx, Esq.
Telephone: (000)
000-0000
(b) if
to a
Holder, at its address on the signature page to the Stock Purchase
Agreement.
9. Amendments;
Waiver. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and a majority in
interest of the Holders. Any waiver of a provision of this Agreement
must be in writing and executed by the party against whom enforcement of such
waiver is sought.
10. Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. No party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other; provided,
however, that Holder may assign all or any of its rights and obligations
hereunder to any affiliate of Holder that is controlled, directly or indirectly,
by Renaissance Capital Group, Inc. (any such assignment by the Holder pursuant
to the preceding proviso shall not, however, release or be deemed to release
the
Holder from its obligations hereunder, and the Holder shall remain liable for
all such obligations).
11. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
12. Entire
Agreement; Severability. This Agreement sets forth the
entire agreement and understanding of the parties relating to the subject matter
hereof and supersedes all prior and contemporaneous agreements, negotiations
and
understandings between the parties, both oral and written relating to the
subject matter hereof. If any provision contained in this Agreement
is determined to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of law.
14. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
9
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as of September 27,
2007
|
Renaissance
US Growth Investment Trust PLC
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx |
Xxxxxxx
Xxxxxxxxx, President
XXXX
Capital Group, Inc.,
Investment
Manager
|
Address:
|
|
c/o
RENN Capital Group, Inc.
|
|
0000
X. Xxxxxxx Xxxxxxxxxx
|
|
Xxxxx
000-XX 00
|
|
Xxxxxx,
XX 00000-0000
|
|
Attention:
Xxxxxxx Xxxxxxxxx
|
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X. Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
10
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as of September 27,
2007
|
Renaissance
Capital Growth & Income Fund III,
Inc.
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx |
Xxxxxxx
Xxxxxxxxx, President
|
Address:
|
|
c/o
RENN Capital Group, Inc.
|
|
0000
X. Xxxxxxx Xxxxxxxxxx
|
|
Xxxxx
000-XX 00
|
|
Xxxxxx,
XX 00000-0000
|
|
Attention:
Xxxxxxx Xxxxxxxxx
|
SYMBOLLON
PHARMACEUTICALS, INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X. Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
11
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing below.
Dated
as of September 27,
2007
|
Premier
XXXX US Emerging Growth Fund Ltd.
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx |
Xxxxxxx
Xxxxxxxxx, President
XXXX
Capital Group, Inc.,
Investment
Adviser
|
Address:
|
|
c/o
RENN Capital Group, Inc.
|
|
0000
X. Xxxxxxx Xxxxxxxxxx
|
|
Xxxxx
000-XX 00
|
|
Xxxxxx,
XX 00000-0000
|
|
Attention:
Xxxxxxx Xxxxxxxxx
|
SYMBOLLON
PHARMACEUTICALS,INC.
By:
/s/ Xxxx X. Xxxxxxxxx
Xxxx
X. Xxxxxxxxx
President/CEO
[REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]
12
Exhibit
A
Symbollon
Pharmaceuticals, Inc.
Selling
Securityholder Questionnaire
The
undersigned beneficial owner of shares of Common Stock (including shares that
may be acquired upon exercise of warrants) (the “Registrable
Securities”) of Symbollon Pharmaceuticals, Inc. (the
“Company”) understands that the Company has filed or intends
to
file with the Securities and Exchange Commission a registration statement (the
“Registration Statement”) for the registration and resale under
the Securities Act of 1933, as amended (the “Securities Act”),
of the Registrable Securities. This Questionnaire is delivered
pursuant to the terms of the Registration Rights Agreement, dated as of June
__,
2007 (the “Registration Rights Agreement”), among the Company
and the Holders named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named
or
not being named as a selling securityholder in the Registration Statement and
the related prospectus.
The
undersigned beneficial owner (the “Selling Securityholder”) of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under such Item
3)
in the Registration Statement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
|
1.
|
Name.
|
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of each Control Person (which means a natural person that
directly or indirectly has power to vote or dispose of the securities
covered by this Questionnaire):
|
A-1
|
2. Address
for Notices to Selling
Securityholder:
|
Telephone:
|
Fax:
|
Contact
Person:
|
|
3. Beneficial
Ownership of Registrable
Securities:
|
|
(a)
|
Type
and Principal Amount of Registrable Securities beneficially
owned:
|
|
4. Broker-Dealer
Status:
|
|
(a)
|
Are
you a broker-dealer?
|
Yes No
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes No
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes No
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
5. Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
|
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
A-2
|
6. Relationships
with the Company:
|
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
|
State
any exceptions here:
|
7. Claims
against the Company:
Except
as set forth below, to the actual knowledge of the officers and directors or
persons performing similar functions for the undersigned, neither the
undersigned nor any of its Affiliates, officers, directors or principal equity
holders (owners of 5% or more of the equity securities of the undersigned)
has
any claims against the Company, its directors, officers, agents and employees,
and each Person who controls the Company (within the meaning of Section 15
of
the Securities Act and Section 20 of the Exchange Act) relating to the Company’s
sale of Registrable Securities to the undersigned.
State
any
exceptions here:
________________________________________________________________________________________________________________________________________________________________________________________________________________________
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein (other than changes in beneficial ownership
of Common Stock after the effectiveness of the Registration Statement) that
may
occur subsequent to the date hereof at any time prior to the effectiveness
of
the Registration Statement or while the Registration Statement remains
effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers hereto and the inclusion of such information
in
the Registration Statement and the related prospectus and any amendments or
supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
A-3
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Dated: Beneficial
Owner:
By:
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
Xxxx
X. Xxxxxxxxx
Symbollon
Pharmaceuticals, Inc.
00
Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Fax
No. (000) 000-0000
A-4
Exhibit
B
Symbollon
Pharmaceuticals, Inc.
CERTIFICATE
OF SUBSEQUENT SALE
[Transfer
Agent]
|
RE:
|
Sale
of Securities of Common Stock of Symbollon Pharmaceuticals, Inc.
(the
“Company”) pursuant to the Company’s Prospectus dated
_______________, 2007 (the
“Prospectus”)
|
Dear
Sir/Madam:
The
undersigned hereby certifies, in connection with the sale of shares of Common
Stock of the Company included in the table of Selling Shareholders in the
Prospectus, that the undersigned has sold the Shares pursuant to the Prospectus
and in a manner described under the caption “Plan of Distribution” in the
Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling
Shareholder (the beneficial
owner):
Record
Holder (e.g., if held in name of
nominee):
Restricted
Stock Certificate
No.(s):
Number
of
Shares
Sold:
Date
of
Sale:
In
the
event that you receive a stock certificate(s) representing more shares of Common
Stock than have been sold by the undersigned, then you should return to the
undersigned a newly issued certificate for such excess shares in the name of
the
Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you should
place a stop transfer on your records with regard to such
certificate.
Dated: Very
truly yours,
By:
Print
Name:
Title:
B-1