SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
TRIANGLE PHARMACEUTICALS, INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
89589H104
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(CUSIP Number)
Standish M. Fleming
Ivor Royston
c/o Forward Ventures
10975 Torreyana Road
Suite 230
San Diego, CA 92121
(619) 677-6077
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 1, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
|_|.
Check the following box if a fee is being paid with the statement . (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.) |_|
(Continued on following pages)
<PAGE>
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CUSIP NO. 89589H104 13D Page 3 of 20 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Standish M. Fleming
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7 SOLE VOTING POWER
NUMBER 62,798
OF -------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,975,000++
OWNED BY -------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 62,798
WITH -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,975,000++
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,037,798++
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
11.8%
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14 TYPE OF REPORTING PERSON*
IN
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<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
++ 1,475,000 of these shares are held by Forward Ventures II, L.P., of which
Forward II Associates, L.P. is the general partner, of which Mr. Fleming is
a general partner. An additional 500,000 of these shares are held by
Forward Ventures Vanguard Fund, of which Forward New Opportunities L.L.C.
is a general partner, of which Mr. Fleming is a member. Mr. Fleming
disclaims beneficial ownership of these 1,975,000 shares other than to the
extent of his individual partnership and member interests.
<PAGE>
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CUSIP NO. 89589H104 13D Page 5 of 20 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ivor Royston
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7 SOLE VOTING POWER
NUMBER 0
OF -------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,043,456++
OWNED BY -------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH -------------------------------------------------------
10 SHARED DISPOSITIVE POWER
2,043,456++
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,043,456++
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
|_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
11.9%
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14 TYPE OF REPORTING PERSON*
IN
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<PAGE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
++ 1,475,000 of these shares are held by Forward Ventures II, L.P., of which
Forward II Associates, L.P. is the general partner, of which Dr. Royston is
a general partner. An additional 500,000 of these shares are held by
Forward Ventures Vanguard Fund, of which Forward New Opportunities L.L.C.
is a general partner, of which Dr. Royston is a member. Dr. Royston
disclaims beneficial ownership of these 1,975,000 shares other than to the
extent of his individual partnership and member interests.
<PAGE>
Item 1. Security and Issuer
The class of securities to which this statement relates is the Common
Stock, $0.001 par value per share (the "Common Stock"), of Triangle
Pharmaceuticals, Inc., a Delaware corporation (the "Issuer"). The Issuer's
address is 4 University Place, 4611 University Drive, Durham, North Carolina
27707.
Item 2. Identity and Background
Pursuant to Rule 13d-1(f) promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the undersigned hereby jointly file this
statement on Schedule 13D (the "Statement") on behalf of: (i) Standish M.
Fleming, a member of the Board of Directors of the Issuer and a general partner
of Forward Ventures, a venture capital firm ("Forward Ventures"), and (ii) Ivor
Royston, the President of the Sidney Kimmel Cancer Center, a general partner of
Forward Ventures and a Co-Trustee of both the Royston Family Trust UTD March 18,
1992 (the "Royston Family Trust") and the Royston Family Children's Trust (the
"Royston Children's Trust"). Mr. Fleming and Dr. Royston are sometimes
hereinafter referred to collectively as the "Reporting Persons." Mr. Fleming
beneficially owns Common Stock individually and may also be deemed to
beneficially own additional Common Stock as a result of his position as a
general partner (through other entities) of two partnerships affiliated with
Forward Ventures. Dr. Royston beneficially owns Common Stock in his capacity as
a Co-Trustee of the Royston Family Trust and the Royston Children's Trust and
may also be deemed to beneficially own additional Common Stock as a result of
his position as a general partner (through other entities) of two partnerships
affiliated with Forward Ventures. Mr. Fleming and Dr. Royston are making this
single, joint filing to comply with the reporting requirements with respect to
Common Stock of the Issuer that each beneficially owns.
Forward Ventures is affiliated with several separate partnerships, two of
which beneficially own Common Stock of the Issuer: Forward Ventures II, L.P., a
California limited partnership (sometimes hereafter referred to as "Forward
II"), and Forward Ventures Vanguard Fund, a California general partnership
(sometimes hereafter referred to as "Forward Vanguard"). Forward II Associates,
L.P. is the general partner of Forward II and Mr. Fleming and Dr. Royston are
the general partners of Forward II Associates, L.P. Forward New Opportunities
L.L.C. is a general partner of Forward Vanguard and Mr. Fleming and Dr. Royston
are the members of Forward New Opportunities L.L.C. As a result of their
positions as general partners of Forward II Associates, L.P. and members of
Forward New Opportunities L.L.C., Mr. Fleming and Dr. Royston may be deemed
pursuant to Rule 13d-3 to beneficially own the Common Stock owned by Forward II
and Forward Vanguard. Mr. Fleming and Dr. Royston, however, disclaim beneficial
ownership of the shares owned by Forward II and Forward Vanguard other than to
the extent of their individual partnership and member interests.
A. Standish M. Fleming -- Individual
(a) Standish M. Fleming.
(b) Business address: 10975 Torreyana Road, Suite 230, San Diego, CA
92121.
(c) Present principal occupation: General Partner of Forward Ventures
(private investor).
(d)-(e) Standish M. Fleming has not, during the last five years, been
convicted in any criminal proceeding, excluding traffic violations or similar
misdemeanors, nor been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which he was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) Citizenship: USA.
<PAGE>
B. Ivor Royston -- Individual
(a) Ivor Royston.
(b) Business address: 3099 Science Park Road, Suite 200, San Diego, CA
92121.
(c) Present principal occupation: President of the Sidney Kimmel Cancer
Center.
(d)-(e) Ivor Royston has not, during the last five years, been convicted
in any criminal proceeding, excluding traffic violations or similar
misdemeanors, nor been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which he was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) Citizenship: USA.
Item 3. Source and Amount of Funds or Other Consideration
Mr. Fleming used $3,605 of his personal funds to purchase the Issuer's
Common Stock acquired by Mr. Fleming as set forth in Item 5(c)(1) of this
Statement.
Dr. Royston, as a Co-Trustee of the Royston Family Trust, used $30,405 of
such trust's funds to purchase the Issuer's Common Stock acquired by the Royston
Family Trust as set forth in Item 5(c)(2)(A) and (B) of this Statement. Dr.
Royston, as a Co-Trustee of the Royston Children's Trust, used $29,780 of such
trust's funds to purchase the Issuer's Common Stock acquired by the Royston
Children's Trust as set forth in Item 5(c)(2)(C) of this Statement.
Forward II used $1,253,750 of its partnership funds to purchase the
Issuer's securities acquired by Forward II as set forth in Item 5(c)(3)(A) of
this Statement.
Forward Vanguard used $2,500,000 of its funds to purchase the Issuer's
securities acquired by Forward Vanguard as set forth in Item 5(c)(3)(B) of this
Statement.
Item 4. Purpose of Transaction
Mr. Fleming acquired the Common Stock as set forth in Item 5(c)(1) of this
Statement for investment purposes. Mr. Fleming initially purchased 62,500 shares
of the Issuer's Common Stock on November 8, 1995, which he holds individually.
Mr. Fleming made an additional purchase of 298 shares of the Issuer's Common
Stock as part of the Issuer's initial public offering ("IPO") on November 1,
1996, which Common Stock Mr. Fleming also holds individually.
Dr. Royston in his capacity as a Co-Trustee of each of the Royston Family
Trust and the Royston Children's Trust (collectively "Royston Trusts") acquired
the Common Stock as set forth in Item 5(c)(2) of this Statement for trust
investment purposes. As a Co-Trustee, Dr. Royston initially purchased 62,500
shares of the Issuer's Common Stock on November 8, 1995, which he beneficially
owns indirectly. Dr. Royston made an additional purchase as a Co-Trustee on
behalf of the Royston Trusts in the amount of 2,978 shares of the Issuer's
Common Stock for each of the Royston Trusts as part of the Issuer's IPO on
November 1, 1996, which shares Dr. Royston also beneficially owns indirectly.
Forward II and Forward Vanguard (collectively, the "Forward Funds")
acquired the Issuer's securities as set forth in Item 5(c)(3) of this Statement
for investment purposes. The Reporting Persons may be deemed pursuant to Rule
13d-3 to beneficially own the Issuer's securities held by the Forward
<PAGE>
Funds, although each of the Reporting Persons disclaims beneficial ownership of
the shares held by the Forward Funds other than to the extent of his individual
partnership and member interests.
(a) None.
(b) None.
(c) None.
(d) None.
(e) None.
(f) None.
(g) None.
(h) None.
(i) None.
(j) None.
Item 5. Interest in Securities of the Issuer
(a) Mr. Fleming beneficially owns 62,798 shares of Common Stock
individually and may be deemed to beneficially own an additional 1,975,000
shares of Common Stock by virtue of his shared voting and dispositive power over
these shares which are held by the Forward Funds. Mr. Fleming's total beneficial
ownership of 2,037,798 shares represents 11.8% of the outstanding Common Stock
of the Issuer (calculated pursuant to Rule 13d-3(d)(1)).
Dr. Royston, as a Co-Trustee of each of the Royston Trusts,
beneficially owns an aggregate of 68,456 shares of Common Stock and may be
deemed to beneficially own an additional 1,975,000 shares of Common Stock by
virtue of his shared voting and dispositive power over these shares which are
held by the Forward Funds. Dr. Royston's total beneficial ownership of 2,043,456
shares represents 11.9% of the outstanding Common Stock of the Issuer
(calculated pursuant to Rule 13d-3(d)(1)).
Forward II beneficially owns 1,475,000 shares of Common Stock.
Forward II's total beneficial ownership of 1,475,000 shares represents 8.6% of
the outstanding Common Stock of the Issuer (calculated pursuant to Rule
13d-3(d)(1)).
Forward Vanguard beneficially owns 500,000 shares of Common Stock.
Forward Vanguard's total beneficial ownership of 500,000 shares represents 2.9%
of the outstanding Common Stock of the Issuer (calculated pursuant to Rule
13d-3(d)(1)).
(b) Mr. Fleming has sole power to vote and dispose of 62,798 shares of
Common Stock. In addition, as a result of his position as a general partner of
Forward II Associates, L.P., the general partner of Forward II, and a member of
Forward New Opportunities L.L.C., a general partner of Forward Vanguard, Mr.
Fleming shares voting and dispositive power over the 1,475,000 shares of Common
Stock held by Forward II and over the 500,000 shares of Common Stock held by
Forward Vanguard, respectively. Mr. Fleming disclaims beneficial ownership of
the 1,975,000 shares held by the Forward Funds other than to the extent of his
individual partnership and member interests.
<PAGE>
Dr. Royston, as a Co-Trustee of each of the Royston Trusts, shares
voting and dispositive power over an aggregate 68,456 shares of Common Stock. In
addition, as a result of his position as a general partner of Forward II
Associates, L.P., the general partner of Forward II, and a member of Forward New
Opportunities L.L.C., a general partner of Forward Vanguard, Dr. Royston shares
voting and dispositive power over the 1,475,000 shares of Common Stock held by
Forward II and over the 500,000 shares of Common Stock held by Forward Vanguard,
respectively. Dr. Royston disclaims beneficial ownership of these 1,975,000
shares held by the Forward Funds other than to the extent of his individual
partnership and member interests.
(c) No other transactions in the Issuer's securities were effected by
the Reporting Persons, or the entities whereby the Reporting Person's derive
beneficial ownership of the Issuer's securities, except for the following:
(1) Mr. Fleming
A. Mr. Fleming acquired 62,500 shares of Common Stock at a
price of $0.01 per share from the Issuer on November 8, 1995.
B. Mr. Fleming acquired 298 shares of shares of Common Stock at
a price of $10.00 per share from the Issuer on November 1, 1996.
Mr. Fleming now directly owns 62,798 shares or 0.36% of the outstanding
Common Stock of the Issuer. Mr. Fleming acquired such shares for investment
purposes and has sole voting and dispositive power over these shares.
(2) Dr. Royston
A. Dr. Royston, as a Co-Trustee of the Royston Family Trust,
acquired 62,500 shares of Common Stock at a price of $0.01 per share from the
Issuer on November 8, 1995.
B. Dr. Royston, as a Co-Trustee of the Royston Family Trust,
acquired 2,978 shares of Common Stock at a price of $10.00 per share from the
Issuer on November 1, 1996.
C. Dr. Royston, as a Co-Trustee of the Royston Children's
Trust, acquired 2,978 shares of Common Stock at a price of $10.00 per share from
the Issuer on November 1, 1996.
As a Co-Trustee of each of the Royston Trusts, Dr. Royston beneficially
owns an aggregate of 68,456 shares or 0.40% of the outstanding Common Stock of
the Issuer. Dr. Royston acquired such shares in his capacity as a Co-Trustee of
the Royston Trusts for trust investment purposes and shares voting and
dispositive power over these shares along with the other Co-Trustee of each of
the Royston Trusts.
(3) Forward II and Forward Vanguard
A. On July 19, 1995, Forward II acquired 375,000 shares of
Common Stock at a price of $0.01 per share and 666,667 shares of the Issuer's
Series A Preferred Stock, par value $0.001 per share (the "Series A Preferred"),
at a price of $0.75 per share. On November 8, 1995, Forward II acquired an
additional 333,333 shares of the Issuer's Series A Preferred at a price of $0.75
per share. On June 11, 1996, Forward II acquired 100,000 shares of the Issuer's
Series B Preferred Stock, par value $0.001 per share (the "Series B Preferred"),
at a price of $5.00 per share. All of the outstanding shares of the Issuer's
Series A Preferred and Series B Preferred were converted on a one-for-one basis
into shares of the Issuer's Common Stock upon the completion of the Issuer's
IPO. As a result, as of the date of this Statement Forward II beneficially owns
1,475,000 shares or 8.6% of the outstanding Common Stock of the Issuer. Both Mr.
Fleming and Dr. Royston share voting and dispositive power with respect to the
shares of Common Stock beneficially owned by Forward II, but
<PAGE>
disclaim beneficial ownership of these shares other than to the extent of their
individual partnership and member interests.
B. On June 11, 1996, Forward Vanguard acquired 500,000 shares
of the Issuer's Series B Preferred at a price of $5.00 per share. All of the
outstanding shares of the Issuer's Series B Preferred were converted on a
one-for-one basis into shares of the Issuer's Common Stock upon the completion
of the Issuer's IPO. As a result, as of the date of this Statement Forward
Vanguard beneficially owns 500,000 shares or 2.9% of the outstanding Common
Stock of the Issuer. Both Dr. Royston and Mr. Fleming share voting and
dispositive power with respect to the shares of Common Stock beneficially owned
by Forward Vanguard, but disclaim beneficial ownership of these shares other
than to the extent of their individual partnership and member interests.
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock beneficially owned (or deemed to be beneficially owned)
by the Reporting Persons other than as set forth in Item 6(b) below.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
(a) The Reporting Persons hold the shared voting and dispositive power
over the 1,975,000 shares of Common Stock beneficially owned by the Forward
Funds pursuant to written agreements with the Forward Funds and their partners.
The pertinent portions of these agreements are filed as exhibits to this
Statement.
(b) The 500,000 shares of Common Stock beneficially owned by Forward
Vanguard are the sole asset of Forward Vanguard. The general partnership
interests in Forward Vanguard are held by Forward New Opportunities L.L.C. and a
second, unrelated entity. Forward New Opportunities L.L.C. has an option to
purchase a portion of the partnership interest in Forward Vanguard held by this
unrelated entity and has assigned its option to Forward Ventures III, L.P. and
Forward Ventures Alliance, L.P., two entities affiliated with the Forward Funds.
<PAGE>
Item 7. Material to be Filed as Exhibits
(a) Agreement of Joint Filing dated November 11, 1996, between Standish M.
Fleming and Ivor Royston.
(b) Relevant portions of the Forward Ventures II, L.P. Amended and
Restated Limited Partnership Agreement dated September 21, 1993.
(c) Relevant portions of the Forward Ventures Vanguard Fund General
Partnership Agreement dated June 4, 1996.
(d) Contingent Purchase Agreement dated June 4, 1996, between Biotechvest
L.P. and Forward III Associates L.L.C. (now known as Forward New Opportunities
L.L.C.).
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
November 11, 1996
/s/ Standish M. Fleming
----------------------------------
STANDISH M. FLEMING
/s/ Ivor Royston
----------------------------------
IVOR ROYSTON
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (see 18 U.S.C. 1001).
<PAGE>
EXHIBIT INDEX
7(a) Agreement of Joint Filing dated November 11, 1996, between Standish M.
Fleming and Ivor Royston.
7(b) Relevant portions of the Forward Ventures II, L.P. Amended and Restated
Limited Partnership Agreement dated September 21, 1993.
7(c) Relevant portions of the Forward Ventures Vanguard Fund General
Partnership Agreement dated June 4, 1996.
7(d) Contingent Purchase Agreement dated June 4, 1996, between Biotechvest L.P.
and Forward III Associates L.L.C. (now known as Forward New Opportunities
L.L.C.).
Exhibit 7(a)
Agreement of Joint Filing
The undersigned hereby agree that they are filing jointly pursuant to Rule
13d-1(f)(1) of the Securities Exchange Act of 1934, as amended, the Statement
dated November 11, 1996 containing the information required by Schedule 13D, for
the shares of Common Stock of Triangle Pharmaceuticals, Inc. held by the
undersigned individuals.
November 11, 1996
/s/ Standish M. Fleming
----------------------------------
STANDISH M. FLEMING
/s/ Ivor Royston
----------------------------------
IVOR ROYSTON
[Signature Page of Agreement Joint Filing]
Exhibit 7(b)
FORWARD VENTURES II, L.P.,
a Delaware limited partnership
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
This Agreement is amended and restated as of the 21st day of
September, 1993, by and among Forward II Associates L.P., a Delaware limited
partnership (the "General Partner"), and each of the persons the names of which
are set forth under the heading "Limited Partners" on the Schedule of Partners
attached hereto, with respect to Forward Ventures II, L.P., a Delaware limited
partnership (the "Partnership" or "Forward II"), formed on April 22, 1993
pursuant to the Delaware Revised Uniform Limited Partnership Act, as follows:
ARTICLE I
NAME, CHARACTER, AND
PRINCIPAL OFFICE OF PARTNERSHIP
1.1 Partnership Name. The name of the Partnership is Forward
Ventures II, L.P. The partners of the Partnership are the General Partner and
the Limited Partners (the "Partners"). The affairs of the Partnership shall be
conducted under the Partnership name or such other name as the General Partner
may, in its discretion, determine.
1.2 Partnership Purpose. The primary purpose of the Partnership is
to make venture capital investments, principally by investing in equity or
equity-oriented securities of privately-held, early stage emerging biotechnology
and health care related companies. The Partnership may also participate in,
among other things, leveraged acquisitions of privately held and publicly held
corporations (or divisions, subsidiaries or other business units thereof) and
investments in securities of publicly held corporations that appear to be
undervalued or that offer the opportunity for significant capital appreciation.
The general purposes of the Partnership are to buy, hold, sell, and otherwise
invest in Securities, whether readily marketable or not; to exercise all rights,
powers, privileges, and other incidents of ownership or possession with respect
to Securities held or owned by the Partnership; to enter into, make, and perform
all contracts and other undertakings; and to engage in all activities and
transactions as may be necessary, advisable, or desirable, as determined by the
General Partner, to carry out the foregoing.
1.3 Principal Office; Registered Office. The principal office of the
Partnership shall be 4275 Executive Square, Suite 800, La Jolla, California
92037, or such other place or places within the United States as the General
Partner may from time to time designate. The Partnership's registered office in
Delaware, and the name of the registered agent for service of process, shall be
The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801 or such other place or persons as the General Partner
may from time to time designate.
. . . .
<PAGE>
ARTICLE VII
MANAGEMENT, DUTIES, AND RESTRICTIONS
7.1 Management. The General Partner shall have the sole and
exclusive right to manage, control, and conduct the affairs of the Partnership
and to do any and all acts on behalf of the Partnership (including exercise of
rights to elect to adjust the tax basis of Partnership assets and to revoke such
elections and to make such other tax elections as the General Partner shall deem
appropriate).
7.2 Indebtedness; Restrictions; Reinvestments.
(a) The General Partner may borrow money or otherwise incur
indebtedness on behalf of the Partnership or guaranty indebtedness of companies
of which the Partnership holds Securities in an amount not in excess, in the
aggregate at any point in time, of ten percent (10%) of the Partners' Capital
Commitments to the Partnership; provided that no borrowing or guaranty shall be
made by the Partnership if the Limited Partners would be required to recognize
unrelated business taxable income within the meaning of Section 512 of the Code
as a result thereof.
(b) Except with the approval of a Majority in Interest of the
Limited Partners, the Partnership shall not invest (i) more than fifteen percent
(15%) of the aggregate amount of the Partners' Capital Commitments to the
Partnership in the Securities of any one issuer, (ii) more than five percent
(5%) of the aggregate amount of the Partners' Capital Commitments to the
Partnership in Securities purchased by the Partnership in the over-the-counter
market or that are listed on a securities exchange or (iii) partnerships with
investment objectives similar to those of the Partnership.
(c) The Partnership shall not reinvest any proceeds realized on the
sale of Securities in the Partnership's venture capital portfolio; provided that
such proceeds may be reinvested in Money-Market Investments.
(d) The Partnership shall not invest primarily in leveraged
acquisitions of privately or publicly held corporations.
. . . .
Exhibit 7(c)
FORWARD VENTURES VANGUARD FUND
GENERAL PARTNERSHIP AGREEMENT
This General Partnership Agreement of Forward Ventures Vanguard Fund, a
California general partnership (the "Partnership"), by and among Forward III
Associates, L.L.C. and Biotechvest L.P. (each a "General Partner" and
collectively, the "General Partners") is entered into as of the 4th day of June,
1996 as follows:
WITNESSETH:
WHEREAS, the General Partners desire to establish and operate a general
partnership for the purpose set forth below;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and sufficient consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
GENERAL
1.1 Purpose. The primary purposes of the Partnership are to buy, hold and
manage interests in other entities for investment purposes. The general purposes
of the Partnership are to buy, sell, hold, and otherwise invest in securities,
whether readily marketable or not; to exercise all rights, powers, privileges,
and other incidents of ownership or possession with respect to securities held
or owned by the Partnership; to buy, sell, hold, and otherwise invest in assets
other than securities; to exercise all rights, powers, privileges, and other
incidents of ownership or possession with respect to such assets held or owned
by the Partnership; and to engage in all activities and transactions as may be
necessary, advisable, or desirable, as shall be determined by unanimous approval
of the General Partners.
1.2 Title to Property. Title to all property purchased or otherwise
acquired by the Partnership shall be held in the name of the Partnership, unless
all of the General Partners shall otherwise agree.
1.3 Principal Office, Registered Office. The principal office of the
Partnership shall be 10975 Torreyana Road, Suite 230, San Diego, California
92121, or such other place or places within the United States as all of the
General Partners may from time to time designate.
. . . .
ARTICLE IV
MANAGEMENT
4.1 Management. The General Partners, acting by unanimous approval, shall
have the sole and exclusive right to manage, control and conduct the business of
the Partnership and to do any and all acts on behalf of the Partnership, except
as otherwise specifically provided in this Agreement.
<PAGE>
4.2 Indebtedness. The General Partners, acting by unanimous approval, may
borrow money or otherwise incur indebtedness, on behalf of the Partnership, or
guaranty indebtedness of companies of which the Partnership holds Securities.
Exhibit 7(d)
CONTINGENT PURCHASE AGREEMENT
THIS CONTINGENT PURCHASE AGREEMENT is made as of the 4th day of June,
1996, by and between Biotechvest L.P. ("Seller") and Forward III Associates,
L.L.C. ("Buyer").
WHEREAS, Seller and Buyer are the general partners of Forward Ventures
Vanguard Fund, a California general partnership (the "Partnership"), pursuant to
that certain Forward Ventures Vanguard Fund General Partnership Agreement dated
as of June 4, 1996 (the "Partnership Agreement");
WHEREAS, Seller and Buyer intend to cause the Partnership to purchase
securities of Triangle, Inc., a Delaware corporation (the "Company");
WHEREAS, in consideration of Buyer's creating an investment opportunity in
the Company, Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller, up 49.99% of Seller's Partnership Percentage in the Partnership; and
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:.
1. Purchase and Sale of Partnership Percentage. Buyer shall purchase from
Seller, and Seller shall sell to Buyer, up to 49.99% of Seller's Partnership
Percentage in the Partnership (the "Purchased Percentage"), subject to
adjustment as set forth hereafter, for an aggregate purchase price equal to
$1,249,750 (the "Purchase Price"). Upon the Exercise Date, the Purchased
Percentage shall be adjusted to equal the quotient (a percentage) obtained by
dividing (x) $1,249,750 by (y) the sum of (A) $25,000 plus (B) the product of
(i) $25,000 times (ii) fifteen percent (15%) (the "Initial Interest Rate") times
(iii) a fraction, the numerator of which is the number of days from the date of
this Agreement to the Exercise Date (as defined below) and the denominator of
which is 365. Subject to Section 2, Buyer and Seller shall perform their
purchase and sale obligations under this Section 1 on or prior to December 31,
1996; provided, however, that the obligations of Buyer hereunder shall terminate
and shall be of no further force and effect if, using commercially reasonable
efforts, Forward III Associates, L.L.C., or its affiliates, shall fail to form a
new venture capital fund on or before December 31, 1996, with minimum aggregate
capital commitments of $5,000,000 (a "Qualifying Fund"). If the Partnership
dissolves or if the assets of the Partnership are otherwise distributed prior to
the exercise of Buyer's purchase right, then Buyer's right to purchase the
Purchase Percentage shall apply to the assets so distributed to Seller with
respect to the Purchased Percentage. All capitalized terms not defined herein
have the meaning assigned to them in the Partnership Agreement.
1.1 Interest Rate Adjustment. The Initial Interest Rate shall be reduced
to ten percent (10%) upon the first closing of a Qualifying Fund. If the Initial
Interest Rate is so reduced, it shall be increased thereafter on November 1,
1996, to twelve and one-half percent (12.5%) unless the Buyer or its affiliates
shall, on or prior to such date, purchase from Seller that portion of the
Purchase Percentage purchasable by $250,000 of the Purchase Price. If the
Initial Interest Rate is so adjusted, the Initial Interest Rate shall be
calculated using a weighted average interest rate based on the number of days
each such applicable interest rate was in effect. The Buyer may purchase the
Purchase Percentage at any time during the period of this Agreement without
penalty.
2. Term. The purchase rights represented by this Agreement are exercisable
by Buyer at any time from, and until the first anniversary, of the date hereof.
The exercise date shall be the date Seller receives written notice from Buyer of
its decision to purchase the Purchased Percentage (the "Exercise Date"). The
transfer of the Purchased Percentage shall be effected by execution of an
amendment to the Partnership Agreement restating the Partnership Percentages and
the Capital
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Contributions of the General Partners to reflect the transfer of the Purchased
Percentage from Seller to Buyer. Each General Partner hereby expressly agrees,
notwithstanding any term of the Partnership Agreement, to the transfer of the
Purchased Percentage on the terms hereof.
3. Closing. The purchase and sale of the Purchased Percentage shall take
place at the offices of Forward III Associates, L.L.C., at 10:00 A.M. on the
date that is three (3) business days following Buyer's written notice to Seller
that Buyer is purchasing the Purchased Percentage hereunder, or at such other
time and place as Seller and Buyer shall mutually agree. At the Closing, Seller
and Buyer will execute an amendment to the Partnership Agreement restating the
Partnership Percentages and the Capital Contributions of the General Partners to
reflect the transfer of the Purchased Percentage hereunder, against payment by
Buyer to Seller of the Purchase Price applicable thereto by check or wire
transfer, or any combination thereof.
4. Representations and Warranties of Buyer. This Agreement is made in
reliance upon Buyer's representation, which by executing this Agreement Buyer
hereby makes, that (i) Buyer's interest in the Partnership is to be acquired for
investment, and not with a view to the sale or distribution of any part thereof,
and that Buyer has no present intention of selling, granting participation in,
or otherwise distributing the same, except to its affiliates, (ii) Buyer
understands that its interest in the Partnership has not been registered under
the Securities Act and that any transfer or other disposition of the interest
may not be made without registration under the Securities Act of 1933, as
amended (the "Securities Act"), or pursuant to an applicable exemption
therefrom; and (iii) that Buyer is an accredited investor as that term is
defined in Regulation D promulgated by the Securities and Exchange Commission.
4.1 No Reliance on Seller's Representations.. Except as expressly set
forth herein, Buyer has not relied on representations of Seller in making its
investment decision to purchase the Purchased Percentage and has obtained all
information with respect to the Company from the Company. Buyer acknowledges
that Seller is not acting hereunder on behalf of the Company or otherwise as a
broker, dealer, distributor, underwriter or seller of the Purchased Percentage
or shares of the Company's capital stock, for purposes of federal or state
securities laws.
5. Closing Conditions of Seller. The obligations of Seller hereunder are
subject to the condition that the representations and warranties of Buyer
contained in Section 4 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing.
6. Additional Covenants of Buyer. Buyer agrees not to make any disposition
of its rights or obligations under this Agreement other than to its affiliates
without the prior written consent of Seller, which consent shall not be
unreasonably withheld. Buyer agrees not to make any disposition of its rights or
obligations under this Agreement or of the Securities unless and until the
transferee has agreed in writing for the benefit of Seller to be bound by this
Agreement.
7. Indemnification. Buyer agrees to hold Seller harmless against and to
indemnify, out of the assets of Buyer only, Seller (the 'Indemnified Person") to
the fullest extent permitted by law and to save and hold it harmless from and in
respect of all claims, actions, and demands, fees or expenses (including
reasonable attorneys' fees) and any losses or damages in connection with or
resulting from any claim, action, or demand against the Indemnified Person,
including amounts paid in settlement or compromise (if recommended by attorneys
for Buyer) of any such claim, action or demand, with respect to the Purchased
Percentage only, asserting that the execution of this Agreement, or the offer or
sale or purchase of the Purchased Percentage hereunder, violate federal or state
securities laws.
8. Miscellaneous.
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8.1 Survival of Warranties. The warranties, representations and covenants
of Buyer contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
8.2 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any Securities). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
8.3 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.6 Notices. Unless other-wise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
8.7 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only, with
the written consent of the parties hereto. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and Seller.
8.8 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.9 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties and no party shall be liable
or bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BUYER:
FORWARD III ASSOCIATES, L.L.C.
By: /s/ Standish M. Fleming
---------------------------------
Member
Address: 10975 Torreyana Road, Suite 230
San Diego, CA 92121
SELLER:
BIOTECHVEST L.P.
By: /s/ David F. Palmer
---------------------------------
Vice President
Biotechvest II, Inc., General Partner
Address: 233 S. Wacker Drive
Suite 5000 Sears Tower
Chicago, IL 60606
