STOCK PURCHASE AGREEMENT, dated as of July 6, 1998 (this "Agreement"),
between Palatin Technologies, Inc., a Delaware corporation (the "Company"), and
TheraTech, Inc., a Delaware corporation (the "Purchaser").
WHEREAS, the Purchaser and the Company have entered into a License and
Development Agreement dated March 18, 1998 (the "License Agreement");
WHEREAS, the Purchaser and the Company have executed a Letter of Intent,
dated March 18, 1998, in connection with a proposed loan to the Company from the
Purchaser which loan would be convertible into shares of the Company's Series C
Convertible Preferred Stock (the "Loan Transaction");
WHEREAS, the parties to the Loan Transaction desire to void ab initio all
agreements and understandings relating thereto, other than the License
Agreement; and
WHEREAS, subject to the terms and conditions set forth herein, the Company
desires to issue and sell to the Purchaser and the Purchaser desires to acquire
shares of the Company's Common Stock, $.01 par value per share (the "Common
Stock").
IN CONSIDERATION of the mutual covenants and agreements set forth herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1. CERTAIN DEFINITIONS. As used in this Agreement, unless the
context requires a different meaning, the following terms have the meanings
indicated in this Section 1.1:
"Affiliate" means, with respect to any Person, any Person that, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with") shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" shall have the meaning set forth in the recitals hereto.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a Federal legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other government actions
to close.
"Closing" shall have the meaning set forth in Section 2.1(b).
"Closing Date" shall have the meaning set forth in Section 2.1(b).
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, par value $.01 per share.
"Company" shall have the meaning set forth in the recitals hereto.
"Current Balance Sheet" means the unaudited balance sheet of the Company as
of March 31, 1998.
"Disclosure Materials" means, collectively, the SEC Documents, the Exhibits
and Schedules to this Agreement and the Registration Rights Agreement and all
other information furnished in writing by or on behalf of the Company to the
Purchaser or its representatives, respective agents and counsel in connection
with the transactions contemplated by this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Governmental Agency" means any federal, state, local, foreign or other
governmental agency, instrumentality, commission, authority, board or body and
the Nasdaq SmallCap Market.
"Intellectual Property Rights" shall have the meaning set forth in Section
3.1(o).
"Knowledge" or "Know" when used with respect to the Company means the
knowledge of the executive officers, senior management of the Company, or any
other management personnel that has had significant involvement in the business
and affairs of the Company.
"Legal Opinion" means the legal opinion letter of Rubin Baum Levin Constant
& Friedman, outside counsel to the Company, addressed to the Purchaser, dated
the Closing Date, substantially in the form attached hereto as Exhibit B.
"Liability" means any liability or obligation (whether absolute or
contingent, liquidated or unliquidated or due or to become due).
"License Agreement" shall have the meaning set forth in the recitals
hereto.
-2-
"Lien" means, with respect to any asset, any mortgage, lien, pledge, right
of first refusal, charge, security interest or encumbrance of any kind in or on
such asset or the revenues or income thereon or therefrom.
"Loan Transaction" shall have the meaning set forth in the recitals hereto.
"Material Adverse Effect" shall have the meaning set forth in Section
3.1(a).
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition).
"Purchaser" shall have the meaning set forth in the recitals hereto.
"Registration Rights Agreement" means the registration rights agreement,
dated the Closing Date, between the Company and the Purchaser, in the form of
Exhibit A, as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
"Required Approvals" shall have the meaning set forth in Section 3.1(f).
"SEC Documents" shall have the meaning set forth in Section 3.1(k).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Registration Statement" means a registration statement under
the Securities Act prepared by the Company and filed with the Commission in
accordance with the Registration Rights Agreement, covering the resale of the
Shares and naming the holder or holders of such Shares as "selling stockholders"
thereunder.
"Shares" means the shares of Common Stock to be purchased pursuant to this
Agreement.
"Transaction Documents" means, collectively, this Agreement and the
Registration Rights Agreement.
-3-
ARTICLE II
PURCHASE OF SHARES
SECTION 2.1. PURCHASE OF SHARES; CLOSING
(a) Subject to the terms and conditions set forth in this Agreement, the
Company shall issue and sell to the Purchaser and the Purchaser shall purchase
363,636 Shares for an aggregate purchase price of $2,000,000.
(b) The closing of the purchase and sale of the Shares (the "Closing")
shall take place on such date as the parties shall agree at the offices of
Kirkland & Ellis, 153 East 53rd Street, 39th Floor, New York, New York 10022.
The date of the Closing is hereinafter referred to as the "Closing Date."
(c) At the Closing the Company shall (i) issue and deliver one or more
stock certificates representing the Shares to be acquired hereunder by the
Purchaser, duly registered in the name of the Purchaser, (ii) deliver or cause
to be delivered the Legal Opinion, (iii) deliver or cause to be delivered a
certificate executed by the Chief Executive Officer dated the Closing Date
stating that (a) all of the representations and warranties of the Company
contained in this Agreement are true and correct in all material respects at and
as of the Closing Date except to the extent of changes caused by the
transactions contemplated hereby, and (b) all of the covenants and agreements of
the Company contained in this Agreement and required to be performed on or prior
to the Closing Date have been performed in a manner reasonably satisfactory to
the Purchaser, (iv) deliver or cause to be delivered a certificate of the
Secretary or the Assistant Secretary of the Company, dated the Closing Date, as
to the continued and valid existence of the Company, certifying the By-laws of
the Company and the resolutions adopted by the Board of Directors of the Company
authorizing the actions to be taken by the Company under this Agreement, (v)
deliver or cause to be delivered a certificate of the Secretary of the State of
Delaware, dated a recent date, to the effect that the Company is in good
standing in the State of Delaware and that all annual reports, if any, have been
filed as required and that all taxes and fees have been paid in connection
therewith, (vi) deliver or cause to be delivered a certified copy of the
Certificate of Incorporation of the Company as filed with the Secretary of State
of Delaware and any amendments thereto, and (vii) deliver or cause to be
delivered all other executed instruments, agreements and certificates as are
required to be delivered by or on their behalf at the Closing, including without
limitation, this Agreement and the Registration Rights Agreement. The Closing
shall be conditioned on the prior compliance with this paragraph and paragraph
(d) of this Section 2.1.
(d) At the Closing the Purchaser shall deliver or cause to be delivered to
the Company (i) immediately available funds equal to $2,000,000 in United States
dollars; and (ii) all other executed instruments, agreements and certificates as
are required to be delivered by or on their behalf at the Closing, including
without limitation, this Agreement and the Registration Rights Agreement.
-4-
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND QUALIFICATION. The Company has no subsidiaries other
than as set forth in Schedule 3.1(a) (collectively the "Subsidiaries"). The
Company and each of the Subsidiaries is a corporation, duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, with the requisite corporate power and authority to own and use
its properties and assets and to carry on its business as currently conducted.
The Company and each of the Subsidiaries is duly licensed or qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted or property owned by it makes such
license or qualification necessary, except where the failure to be so licensed
or qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (x) adversely affect the legality, validity or enforceability
of the Shares or any Transaction Documents or the transactions contemplated
thereby, (y) have a material adverse effect on the business, results of
operations, assets, prospects, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole or (z) adversely impair the
Company's ability to perform fully on a timely basis its obligations under any
Transaction Documents (any of (x), (y) or (z), a "Material Adverse Effect").
(b) AUTHORIZATION; ENFORCEMENT. The Company has the requisite corporate
power and authority to execute and deliver the Transaction Documents, to
consummate the transactions contemplated by the Transaction Documents and to
otherwise carry out its obligations thereunder. The execution and delivery of
each Transaction Document by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company. Each Transaction Document has been duly
executed by the Company and, when delivered in accordance with the terms hereof,
each Transaction Document shall constitute the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
(c) CAPITALIZATION. The authorized, issued and outstanding capital stock of
the Company is as set forth in Schedule 3.1(c). Neither the issuance nor the
delivery of the Shares is subject to any preemptive or similar rights of any
stockholder of the Company or to any right of first refusal or other similar
right in favor of any Person which has not been waived. Except as specifically
disclosed in Schedule 3.1(c), there are no outstanding pledges, Liens, options,
warrants, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or, except as a result of the purchase and sale of the
Shares hereunder, securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings, or
arrangements by which the Company is or may become bound to issue additional
shares of Common Stock or securities or rights convertible or exchangeable into
shares of Common Stock.
-5-
(d) ISSUANCE OF SECURITIES. The Shares are duly authorized and, when issued
and delivered in accordance with the terms hereof, shall be validly issued,
fully paid and nonassessable, free and clear of all Liens.
(e) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of its Certificate of Incorporation, By-laws or other
charter documents (each as amended through the date hereof), (ii) subject to
obtaining the consents referred to in Section 3.1(f), conflict with, result in a
breach, or constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument (evidencing a Company debt or otherwise) to which the
Company is a party or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company is bound or affected; except in the case of each of clauses (ii) and
(iii), as could not, individually or in the aggregate, have or result in a
Material Adverse Effect. The business of the Company is not being conducted in
violation of any law, ordinance or regulation of any governmental authority,
except for violations which, individually and in the aggregate, could not have
or result in a Material Adverse Effect.
(f) CONSENTS AND APPROVALS. The Company is not required to obtain any
consent, waiver, authorization or order of, or make any filing or registration
with, any court or other federal, state, local, foreign or other governmental
authority or other Person in connection with the execution, delivery and
performance by the Company of the Transaction Documents and the transactions
contemplated thereby, other than (i) the filing of one or more Securities
Registration Statements with the Commission and the making of applicable
blue-sky filings under state securities laws with respect to the Shares and the
transactions contemplated hereby, each as contemplated hereby and by the
Registration Rights Agreement, (ii) the application for the listing of the
Shares on the Nasdaq SmallCap Market (and on each other national securities
exchange, market or trading facility on which the Common Stock is then listed),
and (iii) other than, in all other cases, where the failure to obtain such
consent, waiver, authorization or order, or to give or make such notice or
filing, could not, individually or in the aggregate, have or result in a
Material Adverse Effect (the "Required Approvals").
(g) LITIGATION; PROCEEDINGS. Except as specifically disclosed in the
Disclosure Materials, there is no claim, action, suit, notice of violation,
proceeding or investigation pending or, to the best knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or any of
their respective properties before or by any court, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign) which if decided adversely to any such Person could (i) adversely
affect or challenge the legality, validity or enforceability of any Transaction
Document or the Shares or (ii) could, individually or in the aggregate, have or
result in a Material Adverse Effect.
-6-
(h) NO DEFAULT OR VIOLATION. Neither the Company nor any of its
Subsidiaries (i) is in default under or in violation of (or has received notice
of a claim that it is in default under or that it is in violation of) any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound, (ii) is in
violation of any order of any court, arbitrator or governmental body, or (iii)
is in violation of any statute, rule or regulation of any governmental
authority, except as could, individually or in the aggregate, have or result in
a Material Adverse Effect.
(i) PRIVATE OFFERING. Assuming the accuracy of the representations and
warranties of the Purchaser contained in Sections 3.2(b)-3.2(f), the offering,
issuance or sale of the Shares as contemplated hereunder are exempt from the
registration requirements of the Securities Act and state securities laws.
(j) CERTAIN FEES. No fees or commissions will be payable by the Company to
any broker, financial advisor or consultant, finder, investment banker or Person
performing a similar function, placement agent, or bank with respect to the
transactions contemplated hereby.
(k) SEC DOCUMENTS; DISCLOSURE. The Company has filed all reports required
to be filed by it under the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, since July 1, 1996 (the foregoing materials being collectively
referred to herein as the "SEC Documents") on a timely basis or has received a
valid extension of such time of filing and has filed any such SEC Documents
prior to the expiration of any such extension. As of their respective filing
dates, each SEC Document filed with the Commission complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Documents, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. To the Company's knowledge, each final
registration statement filed with the Commission by the Company pursuant to the
Securities Act since July 1, 1996, as of the date such statement became
effective complied in all material respects with the requirements of the
Securities Act and did not contain any untrue statement of a material fact or
omit to state any 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. This Agreement together with the Schedules, Exhibits,
written statements and certificates supplied to the Purchaser by or on behalf of
the Company with respect to the transactions contemplated hereby does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein, in the light of
the circumstances in which they were made, not misleading.
(l) FORM S-3 ELIGIBILITY. The Company is eligible to register the Shares
for resale with the Commission under Form S-3 promulgated under the Securities
Act.
(m) LISTING AND MAINTENANCE REQUIREMENTS COMPLIANCE. Since the date that
the listing of the Common Stock was initially approved for trading on the Nasdaq
SmallCap Market, the Company has not received notice (written or oral) from any
stock exchange, market or trading facility on which the Common Stock is or has
been listed (or on which it is or has been quoted) to the effect that the
Company is not in compliance with the listing or maintenance requirements of
such exchange, market or trading facility. The Company is in compliance with all
such listing and maintenance requirements.
-7-
(n) INVESTMENT COMPANY. The Company is not, and is not controlled by or
under common control with an Affiliate of, and "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(o) PATENTS AND TRADEMARKS. The Company has, or has rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, copyrights, licenses, trade secrets and other intellectual property
rights which are necessary for use in connection with its business or which the
failure to so have would have a Material Adverse Effect (collectively, the
"Intellectual Property Rights"). To the best knowledge of the Company, none of
the Intellectual Property Rights infringe on any rights of any other Person, and
the Company either owns or has duly licensed or otherwise acquired all necessary
rights with respect to the Intellectual Property Rights. The Company has not
received any notice from any third party of any claim of infringement by the
Company of any of the Intellectual Property Rights, and has no reason to believe
there is any basis for any such claim. To the best knowledge of the Company,
there is no existing infringement by another Person on any of the Intellectual
Property Rights.
(p) NO UNDISCLOSED LIABILITIES. To the Company's knowledge, neither the
Company nor any of its Subsidiaries has any liabilities except (i) as and to the
extent of the amounts reflected or reserved against on the Current Balance Sheet
(including footnotes thereto), (ii) liabilities and obligations incurred in the
ordinary course of business since the date thereof, and (iii) such other
liabilities that in the aggregate will not result in a Material Adverse Effect.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company as follows:
(a) ORGANIZATION; AUTHORITY. The Purchaser is an entity organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents to which
it is a party and to carry out its obligations thereunder. The purchase of the
Shares by the Purchaser hereunder has been duly authorized by all necessary
action on the part of the Purchaser. Each of this Agreement and the Registration
Rights Agreement has been duly executed by the Purchaser and, when delivered by
the Purchaser in accordance with the terms hereof shall constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms.
(b) INVESTMENT INTENT. The Purchaser is acquiring the Shares for its own
account for investment purposes only and not with a view to or for distributing
or reselling such Shares or any part thereof or interest therein, without
prejudice, however, to the Purchaser's right, subject to the provisions of this
Agreement and the Registration Rights Agreement, at all times to sell or
otherwise dispose of all or any part of such Shares pursuant to an effective
registration statement under the Securities Act and in compliance with
applicable state securities laws or under an exemption from such registration.
(c) PURCHASER STATUS. At the time the Purchaser was offered the Shares to
be acquired by it hereunder, it was, at the date hereof, it is, and at the
Closing Date, it will be, an "accredited investor" as defined in Rule 501(a)
under the Securities Act.
-8-
(d) EXPERIENCE OF PURCHASER. The Purchaser has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
Shares, and has so evaluated the merits and risks of such investment.
(e) ABILITY OF PURCHASER TO BEAR RISK OF INVESTMENT. The Purchaser
acknowledges that an investment in the Shares to be acquired by it hereunder is
speculative and involves a high degree of risk. The Purchaser is able to bear
the economic risk of an investment in the Shares and, at the present time, is
able to afford a complete loss of such investment.
(f) ACCESS TO INFORMATION. The Purchaser acknowledges receipt of the
Disclosure Materials and further acknowledges that it has been afforded (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the offering of the Shares, and the merits and risks of investing in the
Shares, (ii) access to information about the Company and the Company's financial
condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to
obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment and to verify the accuracy
and completeness of the information contained in the Disclosure Materials.
(g) RELIANCE. The Purchaser understands and acknowledges that (i) the
Shares to be acquired by it hereunder are being offered and sold to it without
registration under the Securities Act in a private placement that is exempt from
the registration provisions of the Securities Act and (ii) the availability of
such exemption, depends in part on, and the Company will rely upon the accuracy
and truthfulness of, the foregoing representations and the Purchaser hereby
consents to such reliance.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
SECTION 4.1. TRANSFER RESTRICTIONS. (a) The Shares may only be disposed of
pursuant to (i) an effective registration statement under the Securities
Act,(ii) an available exemption from or in a transaction not subject to the
registration requirements of the Securities Act; or (iii) subject to the
conditions set forth herein, any other legally available means of transfer. In
connection with any transfer of any Shares other than pursuant to an effective
registration statement or to the Company, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected and paid for by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration under the Securities Act.
(b) The Purchaser agrees to the imprinting, so long as is required, of the
following legend on the certificates representing the Shares:
-9-
THESE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
SECTION 4.2. USE OF PROCEEDS. The Company shall use all of the proceeds
from the sale of the Shares solely for the research and development of the
dosage form of PT-14 or other peptide, including, but not limited to,
metalopeptide, for sexual dysfunction in any and all drug delivery systems
whether existing now or in the future including OTM, pulmonary, transdermal,
controlled-release injections, and oral drug delivery systems.
SECTION 4.3. LISTING OF SHARES. The Company shall (a) not later than the
fifth Business Day following the Closing Date prepare and file with the Nasdaq
SmallCap Market (as well as any other national securities exchange, market or
trading facility on which the Common Stock is then listed) an additional shares
listing application covering the Shares, (b) take all steps necessary to cause
such Shares to be approved for listing on the Nasdaq SmallCap Market (as well as
on any other national securities exchange, market or trading facility on which
the Common Stock is then listed) as soon as possible thereafter, and (c) provide
to the Purchaser evidence of such listing, and the Company shall maintain the
listing of its Common Stock on such exchange or market.
SECTION 4.4. INTEGRATION. The Company shall not and shall use its best
efforts to ensure that no Affiliate of the Company shall sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Shares in a manner that would require the registration
under the Securities Act of the issue, offer or sale of the Shares to the
Purchaser.
SECTION 4.5. BREACHES. Each of the Company and the Purchaser shall give
prompt written notice to the other of any breach by it of any representation,
warranty or other agreement contained in any Transaction Document, as well as
any events or occurrences arising after the date hereof and prior to the Closing
Date, which would reasonably be likely to cause any representation or warranty
or other agreement of such party, as the case may be, contained in the
Transaction Documents to be incorrect or breached as of such Closing Date.
However, no disclosure by a party pursuant to this Section shall be deemed to
cure any breach of any representation, warranty or other agreement contained in
any Transaction Document.
-10-
ARTICLE V
MISCELLANEOUS
SECTION 5.1. FEES AND EXPENSES. Each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. The Purchaser shall be
responsible for its own tax liability that may arise as a result of the
investment hereunder or the transactions contemplated by this Agreement.
SECTION 5.2. ENTIRE AGREEMENT; AMENDMENTS, EXHIBITS AND SCHEDULES. This
Agreement, together with the Exhibits and Schedules hereto contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters, including, without limitation, any and all agreements and
understandings with respect to the Loan Transaction other than the License
Agreement. The Exhibits and Schedules to this Agreement are hereby incorporated
herein and made a part hereof for all purposes as if fully set forth herein.
SECTION 5.3. NOTICES. Any notice or other communication or delivery
required or permitted to be provided hereunder shall be in writing and shall be
deemed to have been received on the earliest of (i) the date of transmission, if
such notice or communication is delivered to the address or to the facsimile
telephone number (as the case may be) specified in this Section prior to 8:00
p.m. (Eastern Standard time) on a Business Day, (ii) the Business Day after the
date of transmission or hand delivery, if such notice or communication is
delivered to the address or the at the facsimile telephone number (as the case
may be) specified in this Section later than 8:00 p.m. (Eastern Standard time)
on any date and earlier than 11:59 p.m. (Eastern Standard time) on such date,
(iii) the Business Day following the date of mailing, if sent by nationally
recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. The address for such notices and
communications to the Purchaser and the Company shall be to the following
addresses:
TheraTech, Inc.
417 Wakara Way
Salt Lake City, UT 84108
Facsimile No.: (801) 583-0050
Attn: Dinesh C. Patel, Ph.D., President, Chairman and Chief
Executive Officer
With copies to Kirkland & Ellis & Co.
153 East 53rd Street, 39th Floor
New York, NY 10022
Facsimile No.: (212) 446-4900
Attn: Stephen P. Johnson
-11-
Palatin Technologies, Inc.
214 Carnegie Center
Princeton, NJ 08540
Facsimile No.: (609) 452-0880
Attn: Edward J. Quilty, Chairman and Chief Executive Officer
With copies to: Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, NY 10112
Facsimile No.: (212) 698-7700
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
SECTION 5.4. AMENDMENTS; WAIVERS. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by the Company and the Purchaser, or, in the case of a waiver, by the
party against whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
SECTION 5.5. HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
SECTION 5.6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns, including any Persons to whom the Purchaser transfers Shares. The
assignment by a party of this Agreement or any rights hereunder shall not affect
the obligations of such party under this Agreement.
SECTION 5.7. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted
assigns and, other than with respect to permitted assignees under Section 5.6,
is not for the benefit of, nor may any provision hereof be enforced by, any
other Person.
SECTION 5.8. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principles of conflicts of law thereof.
-12-
SECTION 5.9. WAIVER OF JURY TRIAL. The parties to this Agreement each
hereby waives to the fullest extent permitted by law, any right to trial by jury
of any claim, demand, action, or cause of action arising under this Agreement,
whether now existing or hereafter arising, and whether in contract, tort,
equity, or otherwise. Each of the parties to this Agreement hereby agrees and
consents that any claim, demand, action, or cause of action shall be decided by
court trial without a jury and that the parties to this Agreement may file an
original counterpart of a copy of this Agreement with any court as written
evidence of the consent of the parties hereto to the waiver of their right to
trial by jury.
SECTION 5.10. EXECUTION. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement, and shall become effective when counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
SECTION 5.11. PUBLICITY. The Company and the Purchaser shall consult with
each other in issuing any press releases or otherwise making public statements
with respect to the transactions contemplated hereby and neither the Purchaser
nor the Company shall issue any such press release or otherwise make any such
public statement without the prior written consent of the other, which consent
shall not be unreasonably withheld or delayed, except that no prior consent
shall be required if such disclosure is required by law or any Governmental
Agency, in which such case the disclosing party shall provide the other party
with prior notice of such public statement. The Purchaser shall not make any
public statement or issue any press release regarding the transactions
contemplated hereby without the prior written consent of the Company.
SECTION 5.12. SEVERABILITY. In case any one or more of the provisions of
this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
SECTION 5.13. REMEDIES CUMULATIVE. Except as otherwise provided herein, the
remedies provided herein shall be cumulative and shall not preclude the
assertion by any party hereto of any other rights or the seeking of any other
remedies against any other party hereto.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first indicated above.
The Company:
PALATIN TECHNOLOGIES, INC.
By: ________________________________
Name: Edward J. Quilty
Title: Chairman, President and
Chief Executive Officer
The Purchaser:
THERATECH, INC.
By: ________________________________
Name: Dinesh C. Patel, Ph.D.
Title: Chairman, President and
Chief Executive Officer
-14-