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EXHIBIT 4.5
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 11th day of May, 2001, by and
between Amylin Pharmaceuticals, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), with its principal offices at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a stockholder of the Company who is
listed on Exhibit A-1 hereto (the "Selling Stockholder") and the purchaser whose
name and address is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company, the Selling Stockholder and the Purchaser agree as
follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the
terms and conditions of this Agreement, the Company has authorized the sale of
up to 3,485,000 shares (the "Company Shares") of common stock, par value $.001
per share (the "Common Stock"), of the Company and the Selling Stockholder has
authorized the sale of up to an aggregate of 600,000 shares (the "Selling
Stockholder Shares") of the Company's Common Stock. The Company Shares and the
Selling Stockholder Shares are referred to herein collectively as the "Shares."
SECTION 2. Agreement to Sell and Purchase the Shares. At the
Closing (as defined in Section 3), (i) the Company will sell to the Purchaser,
and the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, the number of Shares (at the purchase price) equal to the
total number of Shares shown below to be purchased by the Purchaser, multiplied
by a fraction, the numerator of which is the number of Company Shares to be sold
by the Company pursuant to the Agreements (as defined below) and the denominator
of which is the total number of Shares to be sold pursuant to the Agreements and
(ii) the Selling Stockholder will sell to the Purchaser, and the Purchaser will
buy from the Selling Stockholder, upon the terms and conditions hereinafter set
forth, the number of Shares (at the purchase price) equal to the total number of
Shares shown below to be purchased by the Purchaser, multiplied by a fraction,
the numerator of which is the number of Selling Stockholder Shares to be sold by
the Selling Stockholder pursuant to the Agreements and the denominator of which
is the total number of Shares to be sold pursuant to the Agreements, upon the
terms and conditions hereinafter set forth, the number of Shares (at the
purchase price) shown below. If the quotient of any of the foregoing
calculations would not result in a whole number of shares, the Purchaser's
allocation between Selling Stockholder Shares and Company Shares shall be
determined by the Company and the Placement Agent in their reasonable
discretion.
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
-------------------- ------------------ -----------------
$10.00
2
The Company and the Selling Stockholder propose to enter into
this same form of purchase agreement with certain other investors (the "Other
Purchasers") and expect to complete sales of the Shares to them. The Purchaser
and the Other Purchasers are hereinafter sometimes collectively referred to as
the "Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements." The term "Placement Agent" shall mean ▇▇▇▇▇▇ Brothers Inc.
SECTION 3. Delivery of the Shares at the Closing. The completion
of the purchase and sale of the Shares (the "Closing") shall occur at the
offices of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ as soon as practicable and as agreed by the parties hereto following
notification by the Securities and Exchange Commission (the "Commission") to the
Company of the Commission's willingness to declare effective the registration
statement to be filed by the Company pursuant to Section 8.1 hereof (the
"Registration Statement") at a place and time (the "Closing Date") to be agreed
upon by the Company, the Selling Stockholder and the Placement Agent and of
which the Purchasers will be notified by facsimile transmission or otherwise;
provided, however, that such date shall be no more than three business days
following the effectiveness of the Registration Statement.
At the Closing, the Company and/or the Selling Stockholder shall
deliver to the Purchaser one or more stock certificates registered in the name
of the Purchaser, or, if so indicated on the Stock Certificate Questionnaire
attached hereto as Appendix I, in such nominee name(s) as designated by the
Purchaser in writing, representing the number of Shares set forth in Section 2
above and bearing an appropriate legend referring to the fact that the Shares
were sold in reliance upon the exemption from registration under the Securities
Act of 1933, as amended (the "Securities Act") provided by Section 4(2) thereof.
The Company will promptly substitute one or more replacement certificates
without the legend at such time as the Registration Statement is effective. The
name(s) in which the stock certificates are to be registered are set forth in
the Stock Certificate Questionnaire attached hereto as part of Appendix I. The
Company's obligation to complete the purchase and sale of the Company Shares and
deliver such stock certificate(s) to the Purchaser at the Closing shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of same-day funds in the full amount of
the purchase price for the Company Shares being purchased hereunder; (b)
completion of the purchases and sales under the Agreements with all of the Other
Purchasers; and (c) the accuracy of the representations and warranties made by
the Purchasers and the fulfillment of those undertakings of the Purchasers to be
fulfilled prior to the Closing. The Selling Stockholder's obligation to complete
the purchase and sale of the Selling Stockholder Shares and deliver such stock
certificate(s) to the Purchaser at the Closing shall be subject to the following
conditions, any one or more of which may be waived by the Selling Stockholder:
(a) receipt by the Selling Stockholder of same-day funds in the full amount of
the purchase price for the Selling Stockholder Shares being purchased hereunder;
(b) completion of the purchases and sales under the Agreements with the Other
Purchasers; and (c) the accuracy of the representations and warranties made by
the Purchasers and the fulfillment of those undertakings of the Purchasers to be
fulfilled prior to the Closing. The Purchaser's obligation to accept delivery of
such stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the
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following conditions: (a) the Commission has notified the Company of the
Commission's willingness to declare the Registration Statement effective on or
prior to the 60th day after the date such Registration Statement was filed by
the Company; (b) that the representations and warranties made by the Company and
the Selling Stockholder herein were accurate in all material respects as of the
date of this Agreement, provided, however, that if any such representations or
warranties are incorrect or untrue as of the date of this Agreement, the Company
and/or the Selling Stockholder (as the case may be) shall have the longer of 20
business days and the date on which all other conditions in this Section 3 must
be satisfied, to cure the circumstances that caused such representations or
warranties to be incorrect or untrue and if such circumstances are cured within
that period, such representations and warranties shall be treated as true and
correct as of the date of this Agreement; and (c) that the Company and the
Selling Stockholder have fulfilled, in all material respects, all undertakings
to be fulfilled prior to Closing. The Purchaser's obligations hereunder are
expressly not conditioned on the purchase by any or all of the Other Purchasers
of the Shares that they have agreed to purchase from the Company and the Selling
Stockholder.
SECTION 4. Representations, Warranties and Covenants of the
Company. Except as otherwise described in the Company's (i) annual report on
Form 10-K for the year ended December 31, 2000, and (ii) notice of annual
meeting and proxy statement relating to the Company's 2001 Annual Meeting of
Stockholders, each as filed by the Company with the Securities and Exchange
Commission (the "SEC Documents") and provided to the Purchaser, and in other
proprietary information that may have been disclosed by the Company to the
Purchaser in contemplation of this offering (including the documents
incorporated by reference therein, the "Company Information"), which qualifies
the following representations and warranties in their entirety, the Company
hereby represents and warrants to, and covenants with, the Selling Stockholder
and the Purchaser as follows:
4.1 Organization and Qualification. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and the Company is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is required, except
where failure to so qualify would not reasonably be expected to have a material
adverse effect upon the business, financial condition, properties or operations
of the Company and its Subsidiary (as defined below) taken as a whole (a
"Material Adverse Effect"). The Company has one subsidiary, Amylin Europe
Limited (the "Subsidiary"). The Subsidiary is a direct wholly-owned subsidiary
of the Company. The Subsidiary is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
qualified to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failure to so qualify would not have a
Material Adverse Effect.
4.2 Authorized Capital Stock. Except as disclosed in or
contemplated by the Confidential Private Placement Memorandum dated May 7, 2001
prepared by the Company, including all Exhibits (except Exhibit C) supplements
and amendments thereto (the "Private Placement Memorandum"), the Company had
authorized and outstanding capital stock as set forth under the heading
"Capitalization" in the Private Placement Memorandum as of the date set
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forth therein; the issued and outstanding shares of the Company's Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, were
not issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities, and conform in all material respects to
the description thereof contained in the Private Placement Memorandum. Except as
disclosed in or contemplated by the Private Placement Memorandum, the Company
does not have outstanding any options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock, stock bonus and other stock
plans or arrangements and the options or other rights granted and exercised
thereunder, set forth in the Private Placement Memorandum accurately and fairly
presents the information required to be shown with respect to such plans,
arrangements, options and rights. With respect to the Subsidiary, (i) the
Company owns 100% of the Subsidiary's capital stock (except for directors'
qualifying shares), (ii) all the issued and outstanding shares of the
Subsidiary's capital stock have been duly authorized and validly issued, are
fully paid and nonassessable, have been issued in compliance with applicable
federal and state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase securities,
and (iii) there are no outstanding options to purchase, or any preemptive rights
or other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
the Subsidiary's capital stock or any such options, rights, convertible
securities or obligations.
4.3 Issuance, Sale and Delivery of the Shares. The Company Shares
have been duly authorized and, when issued, delivered and paid for in the manner
set forth in this Agreement, will be duly authorized, validly issued, fully paid
and nonassessable, and will conform in all material respects to the description
thereof set forth in the Private Placement Memorandum. No preemptive rights or
other rights to subscribe for or purchase exist with respect to the issuance and
sale of the Company Shares by the Company pursuant to this Agreement. No
stockholder of the Company has any right (which has not been waived or has not
expired by reason of lapse of time following notification of the Company's
intent to file the registration statement to be filed pursuant to Section 8.1
(the "Registration Statement") to require the Company to register the sale of
any shares owned by such stockholder under the Securities Act of 1933, as
amended (the "Securities Act"), in the Registration Statement. No further
approval or authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Company Shares to be
sold by the Company as contemplated herein.
4.4 Due Execution, Delivery and Performance of this Agreement.
The Company has full legal right, corporate power and authority to enter into
this Agreement and perform the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Company. The execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions herein contemplated will not violate any provision of the
organizational documents of the Company or the Subsidiary and will not result in
the creation of any lien, charge, security interest or encumbrance upon any
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assets of the Company or the Subsidiary pursuant to the terms or provisions of,
or will not (i) conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a
default under (A) any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company or the
Subsidiary is a party or by which the Company or the Subsidiary or any of their
respective properties may be bound or affected and in each case which would have
a Material Adverse Effect, or (B) to the Company's knowledge, any statute or any
judgment, decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
the Subsidiary or any of their respective properties where such conflict,
breach, violation or default is likely to, result in a Material Adverse Effect.
No consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, except for compliance with the Blue Sky laws and
federal securities laws applicable to the offering of the Shares. Upon the
execution and delivery of this Agreement, and assuming the valid execution
thereof by the Selling Stockholder and the Purchaser, this Agreement will
constitute valid and binding obligations of the Company, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Company in Section 8.3
hereof may be legally unenforceable.
4.5 Accountants. Ernst & Young LLP, who has expressed its opinion
with respect to the consolidated financial statements to be included in the
Registration Statement and the Prospectus which forms a part thereof, are
independent accountants as required by the Securities Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations").
4.6 No Defaults. Except as disclosed in the Private Placement
Memorandum, and except as to defaults, violations and breaches which
individually or in the aggregate would not be material to the Company or the
Subsidiary taken as a whole, neither the Company nor the Subsidiary is in
violation or default of any provision of its certificate of incorporation or
bylaws, or in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and, to the Company's knowledge,
there does not exist any state of fact which, with notice or lapse of time or
both, would constitute an event of default on the part of the Company or the
Subsidiary as defined in such documents, except such defaults which individually
or in the aggregate would not have a Material Adverse Effect.
4.7 Contracts. The contracts described in the Private Placement
Memorandum that are material to the Company or the Subsidiary are in full force
and effect on the date hereof; and neither the Company nor the Subsidiary is,
nor to the Company's knowledge is any other
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party in breach of or default under any of such contracts which would have a
Material Adverse Effect.
4.8 No Actions. Except as disclosed in the Private Placement
Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened in writing to which the
Company or the Subsidiary is or may be a party or of which property owned or
leased by the Company or the Subsidiary is or may be the subject, or related to
environmental or discrimination matters, which actions, suits or proceedings,
individually or in the aggregate, might prevent or might reasonably be expected
to materially and adversely affect the transactions contemplated by this
Agreement or result in a Material Adverse Effect; and no labor disturbance by
the employees of the Company exists, to the Company's knowledge, or is imminent
which might reasonably be expected to have a Material Adverse Effect. Neither
the Company nor the Subsidiary is party to or subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory body
administrative agency or other governmental body.
4.9 Properties. Each of the Company and the Subsidiary has good
and marketable title to all the properties and assets reflected as owned by it
in the consolidated financial statements included in the Private Placement
Memorandum, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except (i) those, if any, reflected in such consolidated financial
statements, or (ii) those which are not material in amount and do not adversely
affect the use made and intended to be made of such property by the Company or
the Subsidiary. Each of the Company and the Subsidiary holds its leased
properties under valid and binding leases, with such exceptions as are not
materially significant in relation to its business taken as a whole.
4.10 No Material Change. Since December 31, 2000 and except as
described in or specifically contemplated by the Private Placement Memorandum,
(i) the Company and the Subsidiary have not incurred any material liabilities or
obligations, indirect, or contingent, or entered into any material verbal or
written agreement or other transaction which is not in the ordinary course of
business other than a $500,000 milestone payment due to a collaborator and the
prepayment of approximately $3 million for the purchase of bulk drug product;
(ii) the Company and the Subsidiary have not sustained any material loss or
interference with its businesses or properties from fire, flood, windstorm,
accident or other calamity not covered by insurance; (iii) the Company and the
Subsidiary have not paid or declared any dividends or other distributions with
respect to its capital stock and neither the Company nor the Subsidiary is in
default in the payment of principal or interest on any outstanding debt
obligations; (iv) there has not been any change in the capital stock of the
Company or the Subsidiary other than the sale of the Company Shares hereunder
and shares or options issued pursuant to employee equity incentive plans or
purchase plans approved by the Company's Board of Directors, or indebtedness
material to the Company or the Subsidiary (other than in the ordinary course of
business and other than warrants to purchase 50,000 shares of the Company's
Common Stock); and (v) any other event or change that would have a Material
Adverse Effect.
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4.11 Intellectual Property.
(a) The Company has ownership or license or legal right to
use all material patent, copyright, trade secret and trademark rights
known by it to be necessary to the conduct of the business of the
Company as now conducted (collectively, "Intellectual Property") other
than Intellectual Property generally available on commercial terms from
other sources.
(b) All material licenses or other material agreements
under which (i) the Company is granted rights in Intellectual Property,
other than Intellectual Property generally available on commercial terms
from other sources, and (ii) the Company has granted rights to others in
Intellectual Property owned or licensed by the Company, are in full
force and effect and, to the knowledge of the Company, there is no
material default by the Company or any other party thereto.
(c) The Company believes it has taken all steps required
in accordance with sound business practice and business judgment to
establish and preserve its ownership of all material copyright, trade
secret and other proprietary rights with respect to its products and
technology.
(d) To the knowledge of the Company, the present business,
activities and products of the Company do not infringe any intellectual
property of any other person, except where such infringement would not,
individually or in the aggregate, have a Material Adverse Effect on the
Company. Except as described in the Company's SEC Documents, no
proceeding charging the Company with infringement of any adversely held
Intellectual Property has been filed. To the knowledge of the Company,
the Company is not making unauthorized use of any confidential
information or trade secrets of any person. To the Company's knowledge,
the activities of the Company or any of its employees on behalf of the
Company do not violate any agreements or arrangements known to the
Company which any such employees have with other persons, if any.
4.12 Compliance. Neither the Company nor the Subsidiary have been
advised, nor has reason to believe, that it is not conducting its business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting its business, including, without limitation, all
applicable local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not have a Material Adverse Effect.
4.13 Taxes. Each of the Company and the Subsidiary has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid or accrued all taxes shown as due thereon, and neither the Company nor the
Subsidiary has knowledge of a tax deficiency which has been or might be asserted
or threatened against it which could have a Material Adverse Effect.
4.14 Transfer Taxes. On the Closing Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to the Purchaser
hereunder will be, or will have been, fully paid or
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provided for by the Company and all laws imposing such taxes will be or will
have been complied with.
4.15 Investment Company. The Company is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for an investment company, within the meaning of the Investment Company Act of
1940, as amended.
4.16 Offering Materials. The Company has not distributed and will
not distribute prior to the Closing Date any offering material in connection
with the offering and sale of the Shares other than (i) the Private Placement
Memorandum or any amendment or supplement thereto, and (ii) other information
provided as contemplated by paragraph 1(a) of that certain Engagement Letter
between the Company and the Placement Agent dated May 6, 2001 (the "Engagement
Letter"). The Company has not in the past nor will it hereafter take any action
independent of the Placement Agent to sell, offer for sale or solicit offers to
buy any securities of the Company which would bring the offer, issuance or sale
of the Shares, as contemplated by this Agreement, within the provisions of
Section 5 of the Securities Act, unless such offer, issuance or sale was or
shall be within the exemptions of Section 4 of the Securities Act.
4.17 Insurance. The Company maintains insurance of the types and
in the amounts that the Company reasonably believes is adequate for its
business, including, but not limited to, insurance covering all real and
personal property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against
by similarly situated companies, all of which insurance is in full force and
effect.
4.18 Contributions. The Company has not at any time since its
incorporation, directly or indirectly, (i) made any unlawful contribution to any
candidate for public office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
4.19 Additional Information. The information contained in the
following documents, which the Placement Agent has furnished to the Purchaser,
or will furnish prior to the Closing, does not include 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 the light of the circumstances
in which they were made, not misleading, as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the year
ended December 31, 2000;
(b) the draft Resale Registration Statement (as defined
below);
(c) the Private Placement Memorandum, including all
addenda and exhibits thereto (other than the Appendices); and
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(d) all other documents, if any, filed by the Company with
the Securities and Exchange Commission (the "Commission") since March
31, 2001 pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
4.20 Legal Opinion. At the Closing, ▇▇▇▇▇▇ Godward LLP, counsel
to the Company, will deliver its legal opinion to the Placement Agent in the
form attached as Exhibit B to the Engagement Letter. Such opinion shall also
state that each of the Purchasers may rely thereon as though it was addressed
directly to such Purchaser.
4.21 Intellectual Property Opinion. At the Closing, the Company's
in-house legal counsel will deliver a legal opinion to the Placement Agent in
the form attached as Exhibit C to the Engagement Letter. Such opinion shall also
state that each of the Purchasers may rely thereon as though it was addressed
directly to such Purchaser.
4.22 Certificate. At the Closing, the Company will deliver to the
Purchaser a certificate executed by the Chairman of the Board or President and
the chief financial or accounting officer of the Company, dated the Closing
Date, in form and substance reasonably satisfactory to the Purchaser, to the
effect that the representations and warranties of the Company set forth in this
Section 4 were true and correct as of the date of this Agreement, and the
Company has complied in all material respects with all the agreements and
satisfied all the conditions herein on its part to be performed or satisfied on
or prior to such Closing Date.
SECTION 5. Representations, Warranties and Covenants of the
Selling Stockholder. The Selling Stockholder represents, warrants and covenants
to the Company and to the Purchaser that:
5.1 Due Execution and Delivery. Such Selling Stockholder has full
power and authority to enter into this Agreement and to carry out all the terms
and provisions hereof and thereof to be carried out by it. All authorizations
and consents necessary for the execution and delivery by such Selling
Stockholder of this Agreement have been given. This Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
and this Agreement will a constitute legal, valid and binding obligation of such
Selling Stockholder, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5.2 Good Title. Such Selling Stockholder now has, and at the time
of delivery thereof hereunder will have, (i) good and marketable title to the
Shares to be sold by such Selling Stockholder hereunder, free and clear of all
encumbrances, and (ii) full legal right and power, and all authorizations and
approvals required by law, to sell, transfer and deliver the Selling Stockholder
Shares to the Purchasers hereunder and to make the representations, warranties
and agreements made by such Selling Stockholder herein.
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5.3 No Defaults. None of the execution, delivery or performance
of this Agreement, and the consummation of the transactions contemplated herein
or therein by such Selling Stockholder conflicts or will conflict with or
results or will result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any encumbrance upon, any property or assets of such Selling
Stockholder pursuant to (i) the terms of any contract or other agreement to
which such Selling Stockholder is a party or by which it is bound or to which
any of its properties is subject, which conflict, breach, violation or default
would adversely affect such Selling Stockholder's ability to perform its
obligations hereunder; (ii) any statute, rule or regulation of any governmental
body having jurisdiction over such Selling Stockholder or any of its activities
or properties; or (iii) the terms of any judgment, decree or order of any
arbitration or governmental body having such jurisdiction.
5.4 Consents. No consent, approval, authorization or order of, or
any filing or declaration with, any governmental body is required for the
consummation by such Selling Stockholder of the transactions on its part
contemplated herein, except such as have been obtained under the state
securities or Blue Sky laws.
5.5 Material Adverse Information. The sale of the Shares proposed
to be sold by such Selling Stockholder is not prompted by such Selling
Stockholder's knowledge of any material adverse information concerning the
Company or its Subsidiary which is not set forth or described in the Private
Placement Memorandum or in the Company's SEC Documents.
5.6 Material Information. On the date of the Private Placement
Memorandum, the information with respect to such Selling Stockholder included
therein did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
5.7 Company Representations and Warranties. Such Selling
Stockholder has no reason to believe that the representations and warranties of
the Company contained in Section 4 are not true and correct in all material
respects.
SECTION 6. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser represents and warrants to, and
covenants with, the Company and the Selling Stockholder that: (i) the
Purchaser is knowledgeable, sophisticated and experienced in making, and
is qualified to make, decisions with respect to investments in shares
representing an investment decision like that involved in the purchase
of the Shares, including investments in securities issued by the
Company, and has requested, received, reviewed and considered all
information it deems relevant in making an informed decision to purchase
the Shares; (ii) the Purchaser is acquiring the number of Shares set
forth in Section 2 above in the ordinary course of its business and for
its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with
any other persons regarding the distribution of such Shares (this
representation and warranty not limiting the Purchaser's
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right to sell pursuant to the Registration Statement or, other than with
respect to any claims arising out of a breach of this representation and
warranty, the Purchaser's right to indemnification under Section 8.3);
(iii) the Purchaser will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares
except in compliance with the Securities Act and the Rules and
Regulations; (iv) the Purchaser has completed or caused to be completed
the Registration Statement Questionnaire attached hereto as part of
Appendix I, for use in preparation of the Registration Statement, and
the answers thereto are true and correct as of the date hereof and will
be true and correct as of the effective date of the Registration
Statement and the Purchaser will notify the Company immediately of any
material change in any such information provided in the Registration
Statement Questionnaire; (v) the Purchaser has, in connection with its
decision to purchase the number of Shares set forth in Section 2 above,
relied solely upon the Private Placement Memorandum and the documents
included therein or incorporated by reference and the other Company
information provided to the Purchaser by the Company and the
representations and warranties of the Company contained herein; and (vi)
the Purchaser is an "accredited investor" within the meaning of Rule
501(a) of Regulation D promulgated under the Securities Act.
(b) The Purchaser understands that the Shares are being
offered and sold to it in reliance upon specific exemptions from the
registration requirements of Securities Act, the Rules and Regulations
and state securities laws and that the Company is relying upon the truth
and accuracy of, and the Purchaser's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to determine
the availability of such exemptions and the eligibility of the Purchaser
to acquire the Shares.
(c) The Purchaser agreed orally with the Placement Agent
to keep confidential all information concerning this private placement.
The Purchaser understands that the information contained in the Private
Placement Memorandum is strictly confidential and proprietary to the
Company and has been prepared from the Company's publicly available
documents and other information and is being submitted to the Purchaser
solely for such Purchaser's confidential use. The Purchaser agrees to
use the information contained in the Private Placement Memorandum for
the sole purpose of evaluating a possible investment in the Shares and
the Purchaser hereby acknowledges that it is prohibited from reproducing
or distributing the Private Placement Memorandum, this Purchase
Agreement, or any other offering materials or other information provided
by the Company in connection with the Purchaser's consideration of its
investment in the Company, in whole or in part, or divulging or
discussing any of their contents. Further, the Purchaser understands
that the existence and nature of all conversations and presentations, if
any, regarding the Company and this offering must be kept strictly
confidential. The Purchaser understands that the federal securities laws
impose restrictions on trading based on information regarding this
offering. In addition, the Purchaser hereby acknowledges that
unauthorized disclosure of information regarding this offering may cause
the Company to violate Regulation FD.
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(d) The Purchaser understands that its investment in the
Shares involves a significant degree of risk and that the market price
of the Common Stock has been volatile and that no representation is
being made as to the future value of the Common Stock. The Purchaser has
the knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the
Shares and has the ability to bear the economic risks of an investment
in the Shares.
(e) The Purchaser understands that no United States
federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Shares.
(f) The Purchaser understands that, until such time as the
Registration Statement has been declared effective or the Shares may be
sold pursuant to Rule 144 under the Securities Act without any
restriction as to the number of securities as of a particular date that
can then be immediately sold, the Shares may bear a restrictive legend
in substantially the following form (and a stop-transfer order may be
placed against transfer of the certificates for the Shares):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION
OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE
144 UNDER SAID ACT."
(g) The Purchaser's principal executive offices are in the
jurisdiction set forth immediately below the Purchaser's name on the
signature pages hereto.
(h) The Purchaser hereby covenants with the Company not to
make any sale of the Shares without complying in all material respects
with the provisions of this Agreement, and if applicable, without
effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Purchaser acknowledges and
agrees that such Shares are not transferable on the books of the Company
unless the certificate submitted to the transfer agent evidencing the
Shares is accompanied by a separate Purchaser's Certificate of
Subsequent Sale: (i) in the form of Appendix II hereto, (ii) executed by
an officer of, or other authorized person designated by, the Purchaser,
and (iii) to the effect that (A) the Shares have been sold in accordance
with the Registration Statement, the Securities Act and any applicable
state securities or blue sky laws and (B), if applicable, the
requirement of delivering a current prospectus has been satisfied. The
Purchaser acknowledges that there may occasionally be times when the
Company must suspend the use of the prospectus forming a part of the
Registration Statement (a "Suspension") until such time as an amendment
to the Registration Statement has been filed by the Company and
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declared effective by the Commission, or until such time as the Company
has filed an appropriate report with the Commission pursuant to the
Exchange Act. The Purchaser hereby covenants that it will not sell any
Shares pursuant to said prospectus during the period commencing at the
time at which the Company gives the Purchaser written notice of the
Suspension of the use of said prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may
thereafter effect sales pursuant to said prospectus, except as
permitted in the second paragraph of Section 8.2 of this Agreement.
(i) The Purchaser further represents and warrants to, and
covenants with, the Company that (i) the Purchaser has full right,
power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all
necessary action to authorize the execution, delivery and performance of
this Agreement, and (ii) upon the execution and delivery of this
Agreement, this Agreement shall constitute a legal, valid and binding
obligation of the Purchaser, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law) and except as the indemnification agreements of the
Purchaser in Section 8.3 hereof may be legally unenforceable.
SECTION 7. Survival of Representations, Warranties and
Agreements. Notwithstanding any investigation made by any party to this
Agreement or by the Placement Agent, all covenants, agreements, representations
and warranties made by the Company, the Selling Stockholder and the Purchaser
herein and in the certificates for the Shares delivered pursuant hereto shall
survive the execution of this Agreement, the delivery to the Purchaser of the
Shares being purchased and the payment therefor.
SECTION 8. Registration of the Shares; Compliance with the
Securities Act.
8.1 Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of necessary information from the
Purchasers, as promptly as practicable, but in no event later than 10
days after the date that the Agreements are executed, file with the
Commission the Registration Statement on Form S-3 relating to the sale
of the Shares by the Purchaser and the Other Purchasers from time to
time on the Nasdaq National Market or the facilities of any national
securities exchange on which the Common Stock is then traded or in
privately-negotiated transactions;
(b) use its reasonable efforts, subject to receipt of
necessary information from the Purchasers, to cause the Commission to
notify the Company of the Commission's willingness to declare the
Registration Statement effective within 60 days after the Registration
Statement is filed by the Company;
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(c) promptly prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective until the earlier of (i) two years
after the effective date of the Registration Statement; (ii) the date on
which the Shares may be resold by the Purchasers without registration by
reason of Rule 144(k) under the Securities Act or any other rule of
similar effect; or (iii) such time as all Shares purchased by such
Purchaser under this Agreement have been sold.
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to each underwriter, if
any, of such Shares) such number of copies of prospectuses and such
other documents as the Purchaser may reasonably request, in order to
facilitate the public sale or other disposition of all or any of the
Shares by the Purchaser; provided, however, that the obligation of the
Company to deliver copies of prospectuses to the Purchaser shall be
subject to the receipt by the Company of reasonable assurances from the
Purchaser that the Purchaser will comply with the applicable provisions
of the Securities Act and of such other securities or blue sky laws as
may be applicable in connection with any use of such prospectuses;
(e) file documents required of the Company for normal blue
sky clearance in states specified in writing by the Purchaser; 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; and
(f) bear all expenses in connection with the procedures in
paragraphs (a) through (e) of this Section 8.1 and the registration of
the Shares pursuant to the Registration Statement, other than fees and
expenses, if any, of counsel or other advisers to the Purchaser or the
Other Purchasers or underwriting discounts, brokerage fees and
commissions incurred by the Purchaser or the Other Purchasers, if any.
The Company understands that the Purchaser disclaims being an
underwriter, but the Purchaser being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder; provided, however, that if the
Company receives notification from the Commission that the Purchaser or any
Other Purchaser is deemed an underwriter, then the 60 day period referenced in
the second paragraph of Section 3 and in Section 8.1(b) above shall be extended
to 90 days. A draft of the proposed form of the Registration Statement is
included in the Private Placement Memorandum and a questionnaire related thereto
to be completed by the Purchaser is attached hereto as Appendix I.
8.2 Transfer of Shares After Registration. The Purchaser agrees
that it will not effect any disposition of the Shares or its right to purchase
the Shares that would constitute a sale within the meaning of the Securities
Act, except as contemplated in the Registration Statement referred to in Section
8.1, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or
its plan of distribution.
Notwithstanding any other provisions of this Agreement, the
Purchaser shall not be prohibited from selling Shares under the Registration
Statement as a result of Suspensions on more than two occasions of not more
than 30 days each in any twelve month period, unless, in the good faith
judgment of the Company's Board of Directors, upon advice of counsel, the sale
of Shares under the Registration Statement in reliance on this paragraph would
be reasonably likely to cause a violation of the Securities Act or the Exchange
Act and result in potential liability to the Company.
8.3 Indemnification. For the purpose of this Section 8.3:
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(i) the term "Purchaser/Affiliate" shall mean any affiliates
of the Purchaser and any person who controls the
Purchaser or any affiliate of the Purchaser within the
meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act; and
(ii) 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 Registration Statement
referred to in Section 8.1.
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each Purchaser/Affiliate, against any losses, claims,
damages, liabilities or expenses, joint or several, to which such
Purchasers or such Purchaser/Affiliates may become subject, under the
Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any claims or litigation, if such settlement is effected
with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, including the prospectus, financial
statements and schedules, and all other documents filed as a part
thereof, as amended at the time of effectiveness of the Registration
Statement, including any information deemed to be a part thereof as of
the time of effectiveness pursuant to paragraph (b) of Rule 430A, or
pursuant to Rule 434, of the Rules and Regulations, or the prospectus,
in the form first filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is
required (the "Prospectus"), or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
in any of them a material fact required to be stated therein or
necessary to make the statements in the Registration Statement or any
amendment or supplement thereto not misleading or in the Prospectus or
any amendment or supplement thereto not misleading in the light of the
circumstances under which they were made, or arise out of or are based
in whole or in part on any inaccuracy in the representations and
warranties of the Company contained in this Agreement, or any failure of
the Company to perform its obligations hereunder or under law, and will
reimburse each Purchaser and each such Purchaser/Affiliate for any legal
and other expenses as such expenses are reasonably incurred by such
Purchaser or such Purchaser/Affiliate in connection with investigating,
defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Purchaser expressly for use therein, or (ii) the failure of such
Purchaser to comply with the covenants and agreements contained in
Sections 6(h) or 8.2 hereof respecting the sale
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of the Shares, or (iii) the inaccuracy of any representations made by
such Purchaser herein or (iv) any statement or omission in any
Prospectus or any amendment or supplement thereto that is corrected in
any subsequent Prospectus or any amendment or supplement thereto that
was delivered to the Purchaser prior to the pertinent sale or sales by
the Purchaser.
(b) Each Purchaser will severally, but not jointly, indemnify and
hold harmless the Company and the Selling Stockholder, each of the
Company's directors, each of the Company's officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act or any Selling Stockholder, against any losses, claims,
damages, liabilities or expenses to which the Company, each of its
directors, each of its officers who signed the Registration Statement,
any Selling Stockholder or any of their respective controlling persons
may become subject, under the Securities Act, the Exchange Act, or any
other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any claim or litigation, if such
settlement is effected with the written consent of such Purchaser)
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are
based upon (i) any failure to comply with the covenants and agreements
contained in Sections 6(h) or 8.2 hereof respecting the sale of the
Shares or (ii) the inaccuracy of any representation made by such
Purchaser herein or (iii) any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements in the
Registration Statement or any amendment or supplement thereto not
misleading or in the Prospectus or any amendment or supplement thereto
not misleading in the light of the circumstances under which they were
made, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by the Purchaser expressly
for use therein, and will reimburse the Company and the Selling
Stockholder, each of the Company's directors, each of its officers who
signed the Registration Statement or controlling person for any legal
and other expense reasonably incurred by the Company and the Selling
Stockholder, each of the Company's directors, each of its officers who
signed the Registration Statement or controlling person in connection
with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action. Notwithstanding any
other provisions of this Section 8.3(b), no Purchaser shall be required
to indemnify any party in excess of the gross proceeds paid by such
Purchaser for Shares purchased pursuant to its respective Agreement.
(c) The Selling Stockholder will severally indemnify and hold
harmless each Purchaser, each Purchaser/Affiliate, the Company, each of
its directors and each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its
officers who signed the Registration Statement
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or controlling person may become subject, under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation,
or at common law or otherwise (including the settlement of any claim or
litigation, if such settlement is effected with the written consent of
such Selling Stockholder) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of, or are based upon (i) any failure to comply with
the covenants and agreements of such Selling Stockholder contained in
the Agreements or (ii) the inaccuracy of any representation made by such
Selling Stockholder in the Agreements or (iii) any untrue or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements in the Registration Statement or any amendment or
supplement thereto not misleading or in the Prospectus or any amendment
or supplement thereto not misleading in the light of the circumstances
under which they were made, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein.
(d) Promptly after receipt by an indemnified party under this
Section 8.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 8.3 promptly notify the
indemnifying party in writing thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8.3 or to the extent
it is not prejudiced as a result of such failure. In case any such
action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if
the defendants in any such action include both the indemnified party and
the indemnifying party and, based upon the advice of such indemnified
party's counsel, the indemnified party shall have reasonably concluded
that there may be a conflict of interest between the positions of the
indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 8.3 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the
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indemnified party shall have employed such counsel in connection with
the assumption of legal defenses in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, representing the indemnified parties who are parties to such
action, plus local counsel, if appropriate) or (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of action, in each of which cases the
reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
(e) If the indemnification provided for in this Section 8.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) of this Section 8.3 in respect to any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company, the Selling Stockholder and the Purchaser from the
placement of the Common Stock contemplated by this Agreement or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but the relative
fault of the Company, the Selling Stockholder and the Purchaser in
connection with the statements or omissions or inaccuracies in the
representations and warranties in this Agreement that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholder, respectively, on the one hand and
each Purchaser on the other shall be deemed to be in the same proportion
as the amount paid by such Purchaser to the Company and the Selling
Stockholder, respectively, pursuant to this Agreement for the Shares
purchased by such Purchaser that were sold pursuant to the Registration
Statement bears to the difference (the "Difference") between the amount
such Purchaser paid for the Shares that were sold pursuant to the
Registration Statement and the amount received by such Purchaser from
such sale. The relative fault of the Company and the Selling
Stockholder, respectively, on the one hand and each Purchaser on the
other shall be determined by reference to, among other things, whether
the untrue or alleged statement of a material fact or the omission or
alleged omission to state a material fact or the inaccurate or the
alleged inaccurate representation and/or warranty relates to information
supplied by the Company, by such Selling Stockholder or by such
Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
paragraph (d) of this Section 8.3, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in paragraph (d)
of this Section 8.3 with respect to the notice of the threat or
commencement of any action shall apply if a claim for contribution is to
be
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made under this paragraph (e); provided, however, that no additional
notice shall be required with respect to any threat or action for which
notice has been given under paragraph (d) for purposes of
indemnification. The Company, the Selling Stockholder and each Purchaser
agree that it would not be just and equitable if contribution pursuant
to this Section 8.3 were determined solely by pro rata allocation (even
if the Purchaser were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the
provisions of this Section 8.3, no Purchaser shall be required to
contribute any amount in excess of the amount by which the Difference
exceeds the amount of any damages that such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this
Section 8.3, no Selling Stockholder shall be required to contribute any
amount in excess of the gross proceeds received by such Selling
Stockholder for the sales of Selling Stockholder Shares under the
Agreements. 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. The Purchasers' obligations to contribute pursuant to
this Section 8.3 are several and not joint.
8.4 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 6 or this Section 8 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares upon
the passage of two years from the effective date of the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory in
form and substance to the Company shall have been rendered to the effect that
such conditions are not necessary in order to comply with the Securities Act.
8.5 Information Available. So long as the Registration Statement
is effective covering the resale of Shares owned by the Purchaser, the Company
will furnish to the Purchaser:
(a) as soon as practicable after available one copy of (i)
its Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted
accounting principles by a national firm of certified public
accountants), (ii) if not included in substance in the Annual Report to
Stockholders, upon the request of the Purchaser, its Annual Report on
Form 10-K, (iii) upon the request of the Purchaser, its Quarterly
Reports on Form 10-Q, (iv) upon the request of the Purchaser, its
Current Reports on Form 8-K, and (v) a full copy of the particular
Registration Statement covering the Shares (the foregoing, in each case,
excluding exhibits);
(b) upon the request of the Purchaser, all exhibits
excluded by the parenthetical to subparagraph (a)(v) of this Section
8.5; and
(c) upon the request of the Purchaser, a reasonable number
of copies of the prospectuses to supply to any other party requiring
such prospectuses;
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and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares and will otherwise cooperate with any Purchaser conducting
an investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters, subject to appropriate
confidentiality limitations.
SECTION 9. Broker's Fee. The Purchaser acknowledges that the
Company and the Selling Stockholder intend to pay to the Placement Agent a fee
in respect of the sale of the Shares to the Purchaser. Each of the parties
hereto hereby represents that, on the basis of any actions and agreements by it,
there are no other brokers or finders entitled to compensation in connection
with the sale of the Shares to the Purchaser.
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
Amylin Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person at such other place as
the Company shall designate to the Purchaser in
writing; and
(b) if to the Purchaser, at its address as set forth
at the end of this Agreement, or at such other
address or addresses as may have been furnished
to the Company in writing.
(c) if to the Selling Stockholder, at the addresses
set forth in Exhibit A-1 hereto.
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SECTION 11. Changes. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the Company and
the Purchaser.
SECTION 12. 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.
SECTION 13. Severability. In case any provision contained in this
Agreement should 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.
SECTION 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York and the
federal law of the United States of America.
SECTION 15. 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. Facsimile signatures shall be deemed
original signatures.
SECTION 16. Entire Agreement. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
SECTION 17. Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
SECTION 18. Confidential Disclosure Agreement. Notwithstanding
any provision of this Agreement to the contrary, any confidential disclosure
agreement previously executed by the Company and the Purchaser in connection
with the transactions contemplated by this Agreement shall remain in full force
and effect in accordance with its terms following the execution of this
Agreement and the consummation of the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-21-
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day and year
first above written.
AMYLIN PHARMACEUTICALS, INC.
By:_________________________________
Name:
Title:
SELLING STOCKHOLDER
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print or Type: Name of Purchaser
(Individual or Institution):
____________________________________
Name of Individual representing
Purchaser (if an Institution):
____________________________________
Title of Individual representing
Purchaser (if an Institution):
____________________________________
-22-
23
Signature by: Individual Purchaser or Individual
representing Purchaser:
____________________________________
Address: ________________________
Telephone: ________________________
Facsimile: ________________________
-23-
24
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Purchase Agreement which follows)
A. Complete the following items on BOTH Purchase Agreements:
1. Pages 22-23 - Signature:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an
Institution)
(iii) Title of Individual representing Purchaser (if an
Institution)
(iv) Signature of Individual Purchaser or Individual
representing Purchaser
2. Appendix I - Stock Certificate Questionnaire/Registration
Statement Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire and the Registration Statement Questionnaire.
3. Return BOTH properly completed and signed Purchase Agreements
including the properly completed Appendix I to:
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Placement Agent at a
later date.
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective, as described in the Purchase
Agreement, the Purchaser:
(i) must deliver a current prospectus of the Company to the
buyer (prospectuses must be obtained from the Company at
the Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the
Company so that the Shares may be properly transferred.
25
Appendix I
(one of two)
AMYLIN PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with
the following information:
1. The exact name that your Shares are to be registered in (this is the
name that will appear on your stock certificate(s)). You may
use a nominee name if appropriate: __________________________
2. The relationship between the Purchaser of the
Shares and the Registered Holder listed in
response to item 1 above: __________________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: __________________________
__________________________
__________________________
__________________________
4. The Social Security Number or Tax
Identification Number of the Registered Holder
listed in response to item 1 above: __________________________
26
Appendix I
(two of two)
AMYLIN PHARMACEUTICALS, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration Statement,
please state your or your organization's name exactly as it should appear in
the Registration Statement:
2. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares purchased
by you or your organization through other transactions:
3. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships
below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
4. Are you (i) an NASD Member (see definition), (ii) a Controlling (see
definition) shareholder of an NASD Member, (iii) a Person Associated with a
Member of the NASD (see definition), or (iv) an Underwriter or a Related
Person (see definition) with respect to the proposed offering; or (b) do you
own any shares or other securities of any NASD Member not purchased in the
open market; or (c) have you made any outstanding subordinated loans to any
NASD Member?
Answer: [ ] Yes [ ] No If "yes," please describe below
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
27
NASD Member. The term "NASD member" means either any broker or
dealer admitted to membership in the National Association of Securities Dealers,
Inc. ("NASD"). (NASD Manual, By-laws Article I, Definitions)
Control. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power, either individually or with others, to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)
Person Associated with a member of the NASD. The term "person
associated with a member of the NASD" means every sole proprietor, partner,
officer, director, branch manager or executive representative of any NASD
Member, or any natural person occupying a similar status or performing similar
functions, or any natural person engaged in the investment banking or securities
business who is directly or indirectly controlling or controlled by a NASD
Member, whether or not such person is registered or exempt from registration
with the NASD pursuant to its bylaws. (NASD Manual, By-laws Article I,
Definitions)
Underwriter or a Related Person. The term "underwriter or a
related person" means, with respect to a proposed offering, underwriters,
underwriters' counsel, financial consultants and advisors, finders, members of
the selling or distribution group, and any and all other persons associated with
or related to any of such persons. (NASD Interpretation)
28
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
________________________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of
the shares evidenced by the attached certificate, and as such,
sold such shares on _______________ in accordance with
[date]
Registration Statement number _____________________________________
[fill in the number of or otherwise
________________________________ and the requirement of delivering a
identify Registration Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or
Institution): ______________________
Name of Individual
representing
Purchaser (if an
Institution) ______________________
Title of Individual
representing
Purchaser (if an
Institution): ______________________
Signature by:
Individual Purchaser
or Individual repre-
senting Purchaser: ______________________
29
Exhibit A-1
SELLING STOCKHOLDER
Name Address for Notices Number of Shares to be Sold
---- ------------------- ---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total: 600,000
30
SCHEDULE OF PURCHASERS
Number of Shares Aggregate
Name Purchased Price
---- ---------------- -----------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10,000 $ 100,000
Clipperbay & Co., as nominee for SMALLCAP World Fund, Inc. 450,000 $ 4,500,000
Framlington Investment Management 460,000 $ 4,600,000
▇▇▇▇▇ ▇▇▇▇▇ 15,000 $ 150,000
BioCentive Limited 100,000 $ 1,000,000
Deerfield Partners, L.P. 105,900 $ 1,059,000
Deerfield International Limited 44,100 $ 441,000
Caduceus Capital II, LP 75,000 $ 750,000
Winchester Global Trust Company Limited, as trustee for
Caduceus Capital Trust 145,000 $ 1,450,000
PW Eucalyptus Fund Ltd. 10,000 $ 100,000
PW Eucalyptus Fund LLC 170,000 $ 1,700,000
Pequot Healthcare Fund, L.P. 627,040 $ 6,270,400
Pequot Healthcare Institutional Fund, L.P. 180,320 $ 1,803,200
Pequot Healthcare Offshore Fund, Inc. 792,640 $ 7,926,400
CLSP, LP 261,508 $ 2,615,080
CLSP II, LP 37,976 $ 379,760
CLSP SBS-I, LP 76,762 $ 767,620
CLSP SBS-II, LP 38,074 $ 380,740
CLSP Overseas Ltd. 85,680 $ 856,800
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as prime broker for Merlin BioMed Int'l, Ltd. 184,000 $ 1,840,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as prime broker for Merlin BioMed, L.P. 128,000 $ 1,280,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as prime broker for Merlin BioMed II, L.P. 52,000 $ 520,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as prime broker for Merlin BioMed III, L.P. 28,000 $ 280,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as prime broker for TAIB Funds, Ltd. 8,000 $ 80,000
--------- -----------
TOTALS 4,085,000 $40,850,000
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