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STOCK PURCHASE AGREEMENT
United Therapeutics Corporation
1110 Spring Street
Silver Spring, MD 20910
Ladies and Gentlemen:
The undersigned, _________________________________(the "Investor"),
hereby confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of July __,
2000 between United Therapeutics Corporation, a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to ________
shares (the "Shares") of common stock of the Company, $0.01 par value per share
(the "Common Stock"), subject to adjustment by the Company's Board of
Directors, to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor ___________
Shares, for a purchase price of $_______ per share, or an aggregate purchase
price of $_______________, pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and incorporated herein by reference as if
fully set forth herein. Unless otherwise requested by the Investor,
certificates representing the Shares purchased by the Investor will be
registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or persons known to it to be affiliates of the Company, (b)
neither it, nor any group of which it is a member or to which it is related,
beneficially owns (including the right to acquire or vote) any securities of
the Company and (c) it has no direct or indirect affiliation or association
with any member of the National Association of Securities Dealers, Inc.
("NASD") as of the date hereof. Exceptions:
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(If no exceptions, write "none." If left blank, response will be
deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose. By executing
this Agreement, you acknowledge that the Company may use the information in
paragraph 4 above and the name and address information below in preparation of
the Registration Statement (as defined in Annex I).
AGREED AND ACCEPTED:
UNITED THERAPEUTICS CORPORATION "INVESTOR"
--------------------- By:
Print Name -------------------------------
Title:
Print Name:
--------------------------------
Title:
------------------------------------
Address:
-----------------------------------
-------------------------------------------
Tax ID No.:
--------------------------------
Contact name:
------------------------------
Telephone:
---------------------------------
Name in which Shares should
be registered (if different):
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
________ Shares. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the Closing (as defined in Section 3), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions hereinafter set forth, the number of Shares set forth on
the signature page hereto at the purchase price set forth on such
signature page.
2.2 The Company may enter into this same form of Stock Purchase
Agreement with certain other investors (the "Other Investors") and expects to
complete sales of Shares to them. (The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the "Investors," and this
Agreement and the Stock Purchase Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the "Agreements.") The Company
may accept executed Agreements from Investors for the purchase of Shares
commencing upon the date on which the Company provides the Investors with the
proposed purchase price per Share and concluding upon the date (the
"Subscription Date") on which the Company has (i) executed Agreements with
Investors for the purchase of at least 800,000 Shares, and (ii) notified
Deutsche Bank Securities, Inc. (in its capacity as Placement Agent for the
Shares, the "Placement Agent") agent for this transaction in writing that the
Company is no longer accepting Agreements from Investors for the purchase of
Shares. The Company may not enter into any Agreements after the Subscription
Date.
2.3 Investor acknowledges that the Company intends to pay the
Placement Agent a fee in respect of the sale of Shares to the Investor.
3. Delivery of the Shares at Closing. The completion of the purchase and
sale of the Shares (the "Closing") shall occur (the "Closing Date") on July __,
2000 (the "Closing Date"), at the offices of the Company's counsel. At the
Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of Shares set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor.
The Company's obligation to issue the Shares to the Investor 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 a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being purchased hereunder as set forth on the signature page hereto; (b)
completion of the purchases and sales under the Agreements with the Other
Investors; and (c) the accuracy of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the Investors to be
fulfilled prior to the Closing.
The Investor's obligation to purchase the Shares shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
800,000 Shares, (b) the representations and warranties of the Company set forth
herein shall be true and correct as of the Closing Date in all material respects
and (c) the Investor and the Placement Agent shall have received such documents
as such Investor shall reasonably have requested, including an opinion of
Company Counsel as to the matters set forth in Section 4.2, with respect to Rule
10b-5 under the Securities Exchange Act of 1934, the exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), of the sale of the Shares and such other matters in a form
reasonably satisfactory to the Placement Agent and counsel to the Placement
Agent, which opinion shall also state that each of the Purchasers may rely
thereon as though such opinion was addressed directly to such Investors.
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4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Investor, as
follows:
4.1 Organization. The Company is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries (as defined in Rule 405
under the Securities Act of 1933, as amended (the "Securities Act")) has full
power and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and as described in the Company's Annual Report
on Form 10-K dated March 22, 2000, Quarterly Report on Form 10-Q dated May 12,
2000, Current Reports on Form 8-K filed June 29, 2000, June 28, 2000 and
February 2, 2000 and Definitive Proxy Statement dated April 14, 2000, including
all exhibits, supplements and amendments thereto (the "SEC Filings") and is
registered or qualified to do business and in good standing in each jurisdiction
in which it owns or leases property or transacts business and where the failure
to be so qualified would have a material adverse effect upon the business,
financial condition, properties or operations of the Company and its
Subsidiaries, considered as one enterprise ("Material Adverse Effect"), and no
proceeding has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
4.2 Due Authorization and Valid Issuance. The Company has all
requisite power and authority to execute, deliver and perform its obligations
under the Agreements, and the Agreements have been duly authorized and validly
executed and delivered by the Company and constitute legal, valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms, except as rights to indemnity and contribution may be limited by
state or federal securities laws or the public policy underlying such laws,
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). The Shares being purchased by the Investor
hereunder will, upon issuance pursuant to the terms hereof, be duly authorized,
validly issued, fully-paid and nonassessable.
4.3 Non-Contravention. The execution and delivery of the
Agreements, the issuance and sale of the Shares to be sold by the Company under
the Agreements, the fulfillment of the terms of the Agreements and the
consummation of the transactions contemplated thereby will not (A) conflict with
or constitute a violation of, or default (with the passage of time or otherwise)
under, (i) any material bond, debenture, note or other evidence of indebtedness,
lease, contract, indenture, mortgage, deed of trust, loan agreement, joint
venture or other agreement or instrument to which the Company or any Subsidiary
is a party or by which it or any of its Subsidiaries or their respective
properties are bound when such violation, conflict or default would have a
Material Adverse Effect, (ii) the charter, by-laws or other organizational
documents of the Company or any Subsidiary, or (iii) any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or any Subsidiary or their
respective properties, or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any Subsidiary or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them is bound or to which any of the property or assets of the
Company or any Subsidiary is subject where such lien or other restriction would
have a Material Adverse Effect. No consent, approval, authorization or other
order of, or registration, qualification or filing with, any regulatory body,
administrative agency, or other governmental body in the United States or any
other person is required for the execution and delivery of the Agreements and
the valid issuance and sale of the Shares to be sold pursuant to the Agreements,
other than such as have been made or obtained, and except for any post-closing
securities filings or notifications required to be made under federal or state
securities laws.
4.4 Capitalization. The capitalization of the Company as of March
31, 2000 is as set forth in the SEC Filings (excluding unvested options and
treasury shares). The Company has not issued any capital stock since that date
other than pursuant to (i) employee benefit plans disclosed in the SEC Filings,
or (ii) outstanding warrants or options disclosed in the SEC Filings. The
outstanding shares of capital stock of the Company have been
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duly and validly issued and are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and were not issued in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. Except as set forth in or contemplated by the SEC Filings,
there are no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any unissued shares of capital stock or other equity interest
in the Company or any Subsidiary, or any contract, commitment, agreement,
understanding or arrangement of any kind to which the Company is a party or of
which the Company has knowledge and relating to the issuance or sale of any
capital stock of the Company or any Subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options. Without
limiting the foregoing, no preemptive right, co-sale right, right of first
refusal, registration right (except as set forth herein), or other similar right
exists with respect to the Shares or the issuance and sale thereof. No further
approval or authorization of any stockholder, the Board of Directors of the
Company or others is required for the issuance and sale of the Shares. The
Company owns the entire equity interest in each of its Subsidiaries, free and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest, other than as described in the SEC Filings. Except as disclosed in SEC
Filings, there are no stockholders agreements, voting agreements or other
similar agreements with respect to the Common Stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company's
stockholders.
4.5 Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject that is not disclosed in
the SEC Filings.
4.6 No Violations. Neither the Company nor any Subsidiary is in
violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect on the business or financial
condition of the Company and its Subsidiaries, considered as one enterprise, or
is in default (and there exists no condition which, with the passage of time or
otherwise, would constitute a default) in any material respect in the
performance of any bond, debenture, note or any other evidence of indebtedness
in any indenture, mortgage, deed of trust or any other material agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or by which the properties of the Company or
any Subsidiary are bound, which would be reasonably likely to have a Material
Adverse Effect upon the business or financial condition of the Company and its
Subsidiaries, considered as one enterprise.
4.7 Governmental Permits, Etc. With the exception of the matters
which are dealt with separately in Sections 4.1, 4.12, 4.13, and 4.14, each of
the Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted and as described in the SEC Filings except where the
failure to currently possess could not reasonably be expected to have a Material
Adverse Effect.
4.8 Intellectual Property. Except as specifically disclosed in
the SEC Filings (i) each of the Company and its Subsidiaries owns or possesses
sufficient rights to use all material patents, patent rights, trademarks,
copyrights, licenses, inventions, trade secrets, trade names and know-how
(collectively, "Intellectual Property") described or referred to in the SEC
Filings as owned or possessed by it or that are necessary for the conduct of its
business as now conducted or as proposed to be conducted as described in the SEC
Filings except where the failure to currently own or possess would not have a
Material Adverse Effect, (ii) neither the Company nor any of its Subsidiaries
has received any notice of, or has any knowledge of, any infringement of
asserted rights of a third party with respect to any Intellectual Property that,
individually or in the aggregate, would have a Material Adverse Effect and (iii)
neither the Company nor any of its Subsidiaries has received any notice of any
infringement of rights of a third party with respect to any Intellectual
Property that, individually or in the aggregate, would have a Material Adverse
Effect.
4.9 Financial Statements. The financial statements of the Company
and the related notes contained in the SEC Filings present fairly, in accordance
with generally accepted accounting principles, the financial position of the
Company and its Subsidiaries as of the dates indicated, and the results of its
operations and
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cash flows for the periods therein specified. Such financial statements
(including the related notes) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods therein specified, except as disclosed in the SEC Filings. The other
financial information contained in the SEC Filings has been prepared on a basis
consistent with the financial statements of the Company.
4.10 No Material Adverse Change. Except as disclosed in the SEC
Filings, since March 31, 2000, there has not been (i) any material adverse
change in the financial condition or earnings of the Company and its
Subsidiaries considered as one enterprise nor has any material adverse event
occurred to the Company or its Subsidiaries, (ii) any material adverse event
affecting the Company, (iii) any obligation, direct or contingent, that is
material to the Company and its Subsidiaries considered as one enterprise,
incurred by the Company, except obligations incurred in the ordinary course of
business, (iv) any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company or any of its Subsidiaries, or (v) any loss
or damage (whether or not insured) to the physical property of the Company or
any of its Subsidiaries which has been sustained which has a material adverse
effect on the condition (financial or otherwise), earnings, operations, business
or business prospects of the Company and its Subsidiaries considered as one
enterprise.
4.11 Disclosure. The information contained in the SEC Filings as
of the date hereof and as of the Closing Date, did not and shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.12 NASDAQ Compliance. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the Securities and Exchange Commission (the "SEC") or the NASD
is contemplating terminating such registration or listing.
4.13 Reporting Status. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") during the 12 months
preceding the date of this Agreement (the "SEC Documents"). The SEC Documents
and all other materials filed with the SEC during such period complied in all
material respects with the SEC's requirements as of their respective filing
dates, and the information contained therein as of the date thereof did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under where they were made not misleading.
4.14 Listing. The Company shall comply with all requirements of
the NASD with respect to the issuance of the Shares and the listing thereof on
the Nasdaq National Market.
4.15 No Manipulation of Stock. The Company has not taken and will
not, in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.16 Foreign Corrupt Practices. Neither the Company, nor to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, have (i) directly or indirectly, used any corrupt funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company or made by any person acting
on its behalf of which the Company is aware is in violation of law, or (iv)
violated in any material respect any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
4.17 Accountants. To the Company's knowledge, KPMG, LLP, who the
Company expects will express their opinion with respect to the financial
statements to be incorporated by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 into the Registration Statement
(as
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defined below) and the Prospectus which forms a part thereof, are independent
accountants as required by the Securities Act and the rules and regulations
promulgated thereunder.
4.18 Contracts. The contracts described in the SEC Documents or
incorporated by reference therein that are material to the Company are in full
force and effect on the date hereof, and neither the Company nor, to the
Company's knowledge, any other party to such contracts is in breach of or
default under any of such contracts which would have a Material Adverse Effect.
4.19 Taxes. The Company 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 the Company has no knowledge of a tax deficiency which
has been or might be asserted or threatened against it which would have a
material adverse effect.
4.20 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 Investor
hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with.
4.21 SEC Filings. The Company has not distributed and will not
distribute prior to the Closing Date any offering material in connection with
this offering and sale of the Shares other than the SEC Filings or any amendment
or supplement thereto. 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 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.
5. Representations, Warranties and Covenants of the Investor.
5.1 The Investor represents and warrants to, and covenants with,
the Company that: (i) the Investor is a "qualified institutional buyer" or an
"accredited investor" as defined in Regulation D under the Securities Act and
the Investor is also knowledgeable, sophisticated and experienced in making, and
is qualified to make decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Shares,
including investments in securities issued by the Company and investments in
comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the
Shares; (ii) the Investor is acquiring the number of Shares set forth on the
signature page hereto 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; (iii) the Investor 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, applicable state securities
laws and the respective rules and regulations promulgated thereunder; (iv) the
Investor has answered all questions on the signature page hereto 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 Closing
Date; (v) the Investor will notify the Company immediately of any change in any
of such information until such time as the Investor has sold all of its Shares
or until the Company is no longer required to keep the Registration Statement
effective; (vi) the Investor has, in connection with its decision to purchase
the number of Shares set forth on the signature page hereto, relied only upon
the SEC Filings and the representations and warranties of the Company contained
herein and (vii) the Investor is not a registered broker-dealer or engaged in
the business of a broker-dealer. Investor understands that its acquisition of
the Shares has not been registered under the Securities Act or registered or
qualified under any state securities law in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona fide
nature of the Investor's investment intent as expressed herein. Investor has
completed or caused to be completed and delivered to the Company the Investor
Questionnaire attached hereto as Exhibit A, which questionnaire is true and
correct in all material respects.
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5.2 The Investor acknowledges, represents and agrees that no
action has been or will be taken in any jurisdiction outside the United States
by the Company that would permit an offering of the Shares, or possession or
distribution of SEC Filings in connection with the issue of the Shares, in any
jurisdiction outside the United States where legal action by the Company for
that purpose is required. Each Investor outside the United States will comply
with all applicable laws and regulations in each foreign jurisdiction in which
it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make
any sale of the Shares without complying with the provisions of this Agreement
and without causing the prospectus delivery requirement under the Securities Act
to be satisfied, and the Investor acknowledges that the certificates evidencing
the Shares will be imprinted with a legend that prohibits their transfer except
in accordance therewith. The Investor acknowledges that there may occasionally
be times when the Company determines that it must suspend the use of the
Prospectus forming a part of the Registration Statement, as set forth in Section
7.2(c).
5.4 The Investor further represents and warrants to, and
covenants with, the Company that (i) the Investor 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) this
Agreement constitutes a valid and binding obligation of the Investor enforceable
against the Investor 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 and contribution agreements
of the Investors herein may be legally unenforceable.
5.5 The Investor will not, prior to the effectiveness of the
Registration Statement, if then prohibited by law or regulation, sell, offer to
sell, solicit offers to buy, dispose of, loan, pledge or grant any right with
respect to (collectively, a "Disposition"), the Common Stock, nor will the
Investor engage in any hedging or other transaction which is designed to or
could reasonably be expected to lead to or result in a Disposition of Common
Stock by the Investor or any person or entity. Such prohibited hedging or other
transaction would include, without limitation, effecting any short sale or
having in effect a short position (whether or not such sale or position is
against the box and regardless of when such position was entered into) or any
purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to the Common Stock or with respect to any security
(other than a broad-based market basket or index) that includes, relates or
derived any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the SEC Filings,
this Agreement or any other materials presented to the Investor in connection
with the purchase and sale of the Shares constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of Shares.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to the Investor of the Shares being purchased and the payment therefor and the
Company will indemnify the Investors for any breach thereof.
7. Registration of the Shares; Compliance with the Securities Act.
7.1 Registration Procedures and Other Matters. The Company
shall:
(a) subject to receipt of necessary information from
the Investors after prompt request from the Company to the Investors to provide
such information, use its reasonable best efforts to prepare and file with the
SEC, within fifteen (15) days after the Closing Date, a registration statement
on Form S-3 (the
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"Registration Statement") to enable the resale of the Shares by the Investors
from time to time through the automated quotation system of the Nasdaq National
Market or in privately-negotiated transactions, and shall in a timely manner
file with the SEC all documents and reports required to be filed under the
Exchange Act and shall use its reasonable best efforts to do all such other
things as would allow the Company to maintain its eligibility to use a
registration statement on Form S-3 until the second anniversary of the Closing
Date;
(b) use its reasonable best efforts, subject to receipt
of necessary information from the Investors after prompt request from the
Company to the Investors to provide such information, to cause the Registration
Statement to become effective within thirty (30) days after the Registration
Statement is filed by the Company such efforts to include, without limiting the
generality of the foregoing, preparing and filing with the SEC in such 30-day
period any financial statements that are required to be filed prior to the
effectiveness of such Registration Statement.
(c) use its reasonable efforts to prepare and file with
the SEC such amendments and supplements to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement current and effective for a period not to exceed, with
respect to each Investor's Shares purchased hereunder, the second anniversary of
the Closing Date.
(d) furnish to the Investor with respect to the Shares
registered under the Registration Statement such number of copies of the
Registration Statement, Prospectuses and Preliminary Prospectuses in conformity
with the requirements of the Securities Act and such other documents as the
Investor may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Investor; provided, however, that
the obligation of the Company to deliver copies of Prospectuses or Preliminary
Prospectuses to the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor 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 or
Preliminary Prospectuses;
(e) file documents required of the Company for normal
blue sky clearance in states specified in writing by the Investor; provided,
however, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented;
(f) bear all expenses in connection with the procedures
in paragraph(a) through (f) of this Section 7.1 and the registration of the
Shares pursuant to the Registration Statement; other than fees and expenses, if
any, of counsel or other advisors to the Investors or underwriting discounts,
brokerage fees and commissions incurred by the Investors.
(g) advise the Investor, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC delaying
or suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will promptly
use its reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal at the earliest possible moment if such stop order should
be issued; and
(h) disclose in the "Selling Stockholders" and "Plan of
Distribution" sections of the Registration Statement and any amendment or
supplement thereto that the Shares offered by the prospectus may be offered from
time to time by and for the respective accounts of the Investors named therein
and their pledgees, donees, transferees, distributees or successors in interest,
including, without limitation, their respective affiliates and limited and/or
general partners, who may sell the Shares pursuant to the prospectus that is
part of the Registration Statement; and supplement or amend the Registration
Statement to provide, if necessary, the names of any such pledgees, donees,
transferees, distributees or successors in interest within two (2) business days
of notice from an Investor.
Notwithstanding anything to the contrary herein, the Registration
Statement shall cover only the Shares. In no event at any time before the
Registration Statement becomes effective with respect to the Shares shall the
Company publicly announce or file any other registration statement without the
prior written consent of a majority in
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<PAGE> 9
interest of the Investors; provided, however, that the filing by the Company of
an amendment to a previously filed registration statement shall not be subject
to such requirement.
7.2 Transfer of Shares After Registration; Suspension.
(a) The Investor 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 7.1 and as
described below or as otherwise permitted by law, and that it will promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies,
the Company shall (i) if deemed necessary by the Company, prepare and file from
time to time with the SEC a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or a supplement or amendment
to any document incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that, as thereafter delivered to purchasers of the Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; (ii) provide the Investor copies of any documents
filed pursuant to Section 7.2(b)(i); and (iii) inform each Investor that the
Company has complied with its obligations in Section 7.2(b)(i) (or that, if the
Company has filed a post-effective amendment to the Registration Statement which
has not yet been declared effective, the Company will notify the Investor to
that effect, will use its reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as possible and will promptly notify the
Investor pursuant to Section 7.2(b)(i) hereof when the amendment has become
effective).
(c) Subject to paragraph (d) below, in the event (i) of
any request by the SEC or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information; (ii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose; or
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) of any event or circumstance which, upon
the advice of its counsel, necessitates the making of any changes in the
Registration Statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall, deliver a certificate in
writing to the Investor (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Investor will refrain from
selling any Shares pursuant to the Registration Statement (a "Suspension") until
the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such Prospectus. In the event of any Suspension, the Company
will use its reasonable efforts to cause the use of the Prospectus so suspended
to be resumed as soon as reasonably practicable within 20 business days after
the delivery of a Suspension Notice to the Investor. In addition to and without
limiting any other remedies (including, without limitation, at law or at equity)
available to the Investor, the Investor shall be entitled to specific
performance in the event that the Company fails to comply with the provisions of
this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this
Section 7.2, the Investor 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, which 30-day periods must
be separated by at least one 30-day period when a Suspension is not in place
unless, in the good faith judgment of the Company's
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<PAGE> 10
Board of Directors, upon advice of counsel, the sale of Shares under the
Registration Statement in reliance on this paragraph 7.2(d) would be reasonably
likely to cause a violation of the Securities Act or the Exchange Act and result
in liability to the Company.
(e) Provided that a Suspension is not then in effect, the
Investor may sell Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such Shares.
Upon receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to the Investor and to supply copies to
any other parties requiring such Prospectuses.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the Investor
and any officer, director, trustee or affiliate of such Investor;
(ii) the term "Registration Statement" shall include any final
Prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(iii) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless
each Selling Stockholder from and against any losses, claims, damages or
liabilities to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) any untrue statement of a material fact contained in the
Registration Statement at the time of effectiveness of the Registration
Statement, (ii) violations of federal or state securities laws, or (iii) any
failure by the Company to fulfill any undertaking included in the Registration
Statement, and the Company will reimburse such Selling Stockholder for any
reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim, or
preparing to defend any such action, proceeding or claim, provided, however,
that the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement made or alleged untrue statement or omission or alleged omission in
such Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling Stockholder
specifically for use in preparation of the Registration Statement or the failure
of such Selling Stockholder to comply with its covenants and agreements
contained in Section 7.2 hereof respecting sale of the Shares or any statement
or omission in any Prospectus that is corrected in any subsequent Prospectus
that was delivered to the Investor prior to the pertinent sale or sales by the
Investor. The Company shall reimburse each Selling Stockholder for the amounts
provided for herein on demand as such expenses are incurred.
(b) The Investor agrees to indemnify and hold harmless
the Company (and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, (i) any failure by such Investor to comply with the covenants and
agreements contained in Section 7.2 hereof respecting sale of the Shares, or
(ii) any untrue statement of a material fact contained in the Registration
Statement if such untrue statement was made in reliance upon and in conformity
with written information furnished by or on behalf of the Investor specifically
for use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as the
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided that the Investor's obligation to indemnify the Company shall be
limited to the net amount received by the Investor from the sale of the Shares.
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(c) Promptly after receipt by any indemnified person of a
notice of a claim or the beginning of any action in respect of which indemnity
is to be sought against an indemnifying person pursuant to this Section 7.3,
such indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying party's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel (together with appropriate local
counsel) for all indemnified parties. In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; provided
that such consent shall not be unreasonably withheld. No indemnifying person
shall, without the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such settlement
includes an unconditional release of such indemnified person from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section
7.3 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Investor,
as well as any other Selling Stockholders under such Registration Statement on
the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, in the case of an
untrue statement, whether the untrue statement relates to information supplied
by the Company on the one hand or an Investor or other Selling Stockholder on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The Company and the
Investor agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation (even if the
Investor and other Selling Stockholders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Investor shall not be required to contribute any amount in
excess of the amount by which the net amount received by the Investor from the
sale of the Shares to which such loss relates exceeds the amount of any damages
which such Investor has otherwise been required to pay by reason of such untrue
statement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Investor's obligations in this subsection to contribute shall be in proportion
to its sale of Shares to which such loss relates and shall not be joint with any
other Selling Shareholders.
(e) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel during
the negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 7.3, and are fully informed regarding said
provisions. They further
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acknowledge that the provisions of this Section 7.3 fairly allocate the risks in
light of the ability of the parties to investigate the Company and its business
in order to assure that adequate disclosure is made in the Registration
Statement as required by the Act and the Exchange Act. The parties are advised
that federal or state public policy as interpreted by the courts in certain
jurisdictions may be contrary to certain of the provisions of this Section 7.3,
and the parties hereto hereby expressly waive and relinquish any right or
ability to assert such public policy as a defense to a claim under this Section
7.3 and further agree not to attempt to assert any such defense.
7.4 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares at
such time as such Shares can be sold under Rule 144(k) or at such time as an
opinion of counsel satisfactory to the Company shall have been rendered to the
effect that such conditions are not necessary in order to comply with the
Securities Act.
7.5 Information Available. So long as the Registration Statement
is effective covering the resale of Shares owned by the Investor, the Company
will furnish to the Investor:
(a) as soon as practicable after it is 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) its Annual
Report on Form 10-K and (iii) its Quarterly Reports on Form 10-Q (the foregoing,
in each case, excluding exhibits);
(b) upon the request of the Investor, all exhibits
excluded by the parenthetical to subparagraph (a) of this Section 7.5 as filed
with the SEC and all other information that is made available to shareholders;
and
(c) upon the reasonable request of the Investor, an
adequate number of copies of the Prospectuses to supply to any other party
requiring such Prospectuses; and the Company, upon the reasonable request of the
Investor, will meet with the Investor or a representative thereof at the
Company's headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Shares and will otherwise cooperate with any
Investor conducting an investigation for the purpose of reducing or eliminating
such Investor's exposure to liability under the Securities Act, including the
reasonable production of information at the Company's headquarters; provided,
that the Company shall not be required to disclose any confidential information
to or meet at its headquarters with any Investor until and unless the Investor
shall have entered into a confidentiality agreement in form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
7.6 The Company will not issue any public statement, press
release or any other public disclosure listing Investor as one of the purchasers
of the Shares without the Investor's prior written consent.
8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed (A) if within
domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International
Federal Express or facsimile, and shall be deemed given (i) if delivered by
first-class registered or certified mail domestic, three business days after so
mailed, (ii) if delivered by nationally recognized overnight carrier, one
business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed, (iv) if delivered by facsimile,
upon electronic confirmation of receipt and shall be delivered as addressed as
follows:
(a) if to the Company, to:
United Therapeutics Corporation
1110 Spring Street
Silver Spring, MD 20910
Attention: Chief Financial Officer
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(b) with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Attention: LaDawn Naegle, Esq.
(c) if to the Investor, at its address on the signature
page hereto, or at such other address or addresses as may
have been furnished to the Company in writing.
9. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
10. 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.
11. 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.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of law.
13. 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.
14. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Investor holding
Shares purchased hereunder made after the first anniversary of the Closing Date,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will take such further action as
any such Investor may reasonably request, all to the extent required from time
to time to enable such Investor to sell Shares purchased hereunder without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Investor, the Company will deliver to such
holder a written statement as to whether it has complied with such information
and requirements.
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EXHIBIT A
UNITED THERAPEUTICS CORPORATION INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: United Therapeutics Corporation
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $.01 per share, of United Therapeutics Corporation (the
"Securities"). The Securities are being offered and sold by United Therapeutics
Corporation (the "Corporation") without registration under the Securities Act of
1933, as amended (the "Act"), and the securities laws of certain states, in
reliance on the exemptions contained in Section 4(2) of the Act and on
Regulation D promulgated thereunder and in reliance on similar exemptions under
applicable state laws. The Corporation must determine that a potential investor
meets certain suitability requirements before offering or selling Securities to
such investor. The purpose of this Questionnaire is to assure the Corporation
that each investor will meet the applicable suitability requirements. The
information supplied by you will be used in determining whether you meet such
criteria, and reliance upon the private offering exemption from registration is
based in part on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a
solicitation of an offer to buy any security. Except as permitted in this
Agreement, your answers will be kept strictly confidential. However, by signing
this Questionnaire you will be authorizing the Corporation to provide a
completed copy of this Questionnaire to such parties as the Corporation deems
appropriate in order to ensure that the offer and sale of the Securities will
not result in a violation of the Act or the securities laws of any state and
that you otherwise satisfy the suitability standards applicable to purchasers of
the Securities. All potential investors must answer all applicable questions and
complete, date and sign this Questionnaire. Please print or type your responses
and attach additional sheets of paper if necessary to complete your answers to
any item.
A. BACKGROUND INFORMATION
Name:
---------------------------------------------------------------------------
Business Address:
---------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: (___)
---------------------------------------------------------
Residence Address:
--------------------------------------------------------------
(Number and Street)
--------------------------------------------------------------------------------
(City) (State) (Zip Code)
Telephone Number: (___)
---------------------------------------------------------
If an individual:
Age:_________ Citizenship:_______ Where registered to vote:________
If a corporation, partnership, limited liability company, trust or other
entity:
Type of entity:
---------------------------------------------------------
State of formation: Date of formation:
-------------- ---------------
Social Security or Taxpayer Identification No.
----------------------------------
Send all correspondence
to (check one): ____ Residence Address ____ Business Address
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B. STATUS AS QUALIFIED INSTITUTIONAL BUYER OR ACCREDITED INVESTOR
The undersigned is a "qualified institutional buyer" as such term is
defined in Rule 144A under the Act, as at the time of the sale of the Securities
the undersigned falls within one or more of the following categories (Please
initial one or more, as applicable):
any of the following entities, acting for its own account or the
accounts of other qualified institutional buyers, that in the aggregate
owns and invests on a discretionary basis at least $100 million in
securities of issuers that are not affiliates with the entity:
____ (1) any insurance company as defined in Section
2(13) of the Act;
____ (2) any investment company registered under the
Act or any business development company as defined in Section
2(a)(48) of that Act;
____ (3) any small business investment company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of
1958;
____ (4) any plan established and maintained by a
state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for
the benefit of its employees;
_____ (5) any employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974;
_____ (6) any trust fund whose trustee is a bank or
trust company and whose participants are exclusively plans of
the types identified in paragraph (a)(1)(i)(D) or (E) of Rule
144A of the Act, except trust funds that include as
participants individual retirement accounts or H.R. 10 plans;
_____ (7) any business development company as defined
in Section 202(a)(22) of the Investment Advisors Act of 1940;
_____ (8) any organization described in Section
501(c)(3) of the Internal Revenue Code, corporation (other
than a bank as defined in Section 3(a)(2) of the Act or a
savings and loan association or other institution referenced
in Section 3(a)(5)(A) of the Act or a foreign bank or savings
and loan association or equivalent institution), partnership,
or Massachusetts or similar business trust; and
_____ (9) any investment adviser registered under the
Investment Advisors Act;
_____ (10) any dealer registered pursuant to Section 15 of the
Exchange Act, acting for its own account or the accounts of other
qualified institutional buyers, that in the aggregate owns and invests
on a discretionary basis at least $10 million of securities of issuers
that are not affiliated with the dealer, provided that securities
constituting the whole or a part of a n unsold allotment to or
subscription by a dealer as a participant in a public offering shall
not be deemed to be owned by such dealer;
_____ (11) any dealer registered pursuant to Section 15 of
the Exchange Act acting in a riskless principal transaction on behalf
of a qualified institutional buyer;
_____ (12) any investment company registered under the
Investment Company Act, acting for its own account or for the accounts
of other qualified institutional buyers, that is part of a family of
investment companies which own in the aggregate at least $100 million in
securities of issuers, other than issuers that are affiliated with the
investment company or are part of such family of investment companies.
"Family of investment companies" means any two or more investment
companies registered under the Investment Company Act, except for a unit
investment trust whose assets consist solely of shares of one or more
registered investment companies, that have the same investment adviser
(or, in the case of unit investment trusts, the same depositor),
provided that, for purposes of this rule:
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<PAGE> 16
(A) each series of a series company (as defined in Rule
18f-2 under the Investment Company Act) shall be deemed to be
a separate investment company; and
(B) investment companies shall be deemed to have the same
adviser (or depositor) if their advisers (or depositors) are
majority-owned subsidiaries of the same parent, or if one
investment company's adviser (or depositor) is a majority-
owned subsidiary of the other investment company's adviser (or
depositor);
_____ (13) any entity, all of the equity owners of which are
qualified institutional buyers, acting for its own account or the
accounts of other qualified institutional buyers; and
_____ (14) any bank as defined in Section 3(a)(2) of the Act,
any savings and loan association or other institution as referenced in
Section3(a)(5)(A) of the Act, or any foreign bank or savings and loan
association or equivalent institution, acting for its own account or the
accounts of other qualified institutional buyers, that in the aggregate
owns and invests on a discretionary basis at least $100 million in
securities of issuers that are not affiliated with it and that has an
audited net worth of at least $25 million as demonstrated in its latest
annual financial statements, as of a date not more than 16 months
preceding the date of sale under the rule in the case of a U.S. bank or
savings and loan association, and not more than 18 months preceding such
date of sale for a foreign bank or savings and loan association or
equivalent institution.
The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Act, as at the time of the sale of the Securities the
undersigned falls within one or more of the following categories (Please initial
one or more, as applicable):(1)
____ (1) a bank as defined in Section 3(a)(2) of the Act, or a
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; a
broker or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934; an insurance company as defined in Section 2(13) of the Act; an
investment company registered under the Investment Corporation Act of 1940 or a
business development company as defined in Section 2(a)(48) of that Act; a
Small Business Investment Corporation licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958; a plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with the investment decisions made
solely by persons that are accredited investors;
____ (2) a private business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940;
____ (3) an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose of acquiring
the Securities offered, with total assets in excess of $5,000,000;
____ (4) a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of such person's purchase of the
Securities exceeds $1,000,000;
--------
(1) As used in this Questionnaire, the term "net worth" means the excess
of total assets over total liabilities. In computing net worth for the purpose
of subsection (4), the principal residence of the investor must be valued at
cost, including cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of encumbrances. In determining
income, the investor should add to the investor's adjusted gross income any
amounts attributable to tax exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depiction,
contributions to an IRA or KEOGH retirement plan, alimony payments, and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
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____ (5) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
____ (6) a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of Regulation D; and
____ (7) an entity in which all of the equity owners are accredited
investors (as defined above).
C. REPRESENTATIONS
The undersigned hereby represents and warrants to the Corporation as
follows:
1. Any purchase of the Securities would be solely for the account of the
undersigned and not for the account of any other person or with a view
to any resale, fractionalization, division, or distribution thereof.
2. The information contained herein is complete and accurate and may be
relied upon by the Corporation, and the undersigned will notify the
Corporation immediately of any material change in any of such
information occurring prior to the closing, if any, with respect to the
purchase of Securities by the undersigned or any co-purchaser.
3. There are no suits, pending litigation, or claims against the
undersigned that could materially affect the net worth of the
undersigned as reported in this Questionnaire.
4. The undersigned acknowledges that there may occasionally be times when
the Corporation determines that it must suspend the use of the
Prospectus forming a part of the Registration Statement (as such terms
are defined in the Stock Purchase Agreement to which this Questionnaire
is attached), as set forth in Section 7.2(c) of the Stock Purchase
Agreement. The undersigned is aware that, in such event, the Securities
will not be subject to ready liquidation, and that any Securities
purchased by the undersigned would have to be held during such
suspension. The overall commitment of the undersigned to investments
which are not readily marketable is not excessive in view of the
undersigned's net worth and financial circumstances, and any purchase of
the Securities will not cause such commitment to become excessive. The
undersigned is able to bear the economic risk of an investment in the
Securities.
5. In addition to reviewing the Corporation's SEC Filings, the undersigned
has carefully considered the potential risks relating to the Corporation
and a purchase of the Securities, and fully understands that the
Securities are speculative investments which involve a high degree of
risk of loss of the undersigned's entire investment.
IN WITNESS WHEREOF, the undersigned has executed this
Questionnaire this _____ day of July, 2000, and declares under oath
that it is truthful and correct.
-----------------------------------------
Print Name
By:
--------------------------------------
Signature
Title:
-------------------------------------
(required for any purchaser that is a
corporation, partnership, trust or
other entity)
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ANNEX II
LETTER REGARDING RESALE PROCEDURES
[COMPANY LETTERHEAD]
_________, 2000
Re: United Therapeutics Corporation; Registration Statement on Form S-3
Dear Selling Shareholder:
Enclosed please find five (5) copies of a prospectus dated
______________, ____ (the "Prospectus") for your use in reselling your shares of
common stock, $.01 par value (the "Shares"), of United Therapeutics Corporation
(the "Company"), under the Company's Registration Statement on Form S-3
(Registration No. 333- ) (the "Registration Statement"), which has been declared
effective by the Securities and Exchange Commission. AS A SELLING SHAREHOLDER
UNDER THE REGISTRATION STATEMENT, YOU HAVE AN OBLIGATION TO DELIVER A COPY OF
THE PROSPECTUS TO EACH PURCHASER OF YOUR SHARES, EITHER DIRECTLY OR THROUGH THE
BROKER-DEALER WHO EXECUTES THE SALE OF YOUR SHARES.
The Company is obligated to notify you in the event that it suspends
trading under the Registration Statement in accordance with the terms of the
Stock Purchase Agreement between the Company and you. During the period that the
Registration Statement remains effective and trading thereunder has not been
suspended, you will be permitted to sell your Shares which are included in the
Prospectus under the Registration Statement. Upon a sale of any Shares under the
Registration Statement, you or your broker will be required to deliver to the
Transfer Agent, The Bank of New York, (1) your restricted stock certificate(s)
representing the Shares, (2) instructions for transfer of the Shares sold, and
(3) a certificate of subsequent sale from your broker, or from you if you are
selling in a privately negotiated transaction, or from such other appropriate
party, in the form of attached hereto (the "Certificate of Subsequent Sale").
The Certificate of Subsequent Sale confirms that the Shares have been sold
pursuant to the Registration Statement and in a manner described under the
caption "Plan of Distribution" in the Prospectus and that such sale was made in
accordance with all applicable securities laws, including the prospectus
delivery requirements.
Please note that you are under no obligation to sell your Shares during
the registration period. However, if you do decide to sell, you must comply with
the requirements described in this letter or otherwise applicable to such sale.
Your failure to do so may result in liability under the Securities Act of 1933,
as amended, and the Securities Exchange Act of 1934, as amended. Please remember
that all sales of your Shares must be carried out in the manner set forth under
the caption "Plan of Distribution" in the Prospectus if you sell under the
Registration Statement. The Company may require an opinion of counsel reasonably
satisfactory to the Company if you choose another method of sale. YOU SHOULD
CONSULT WITH YOUR OWN LEGAL ADVISOR(S) ON AN ONGOING BASIS TO ENSURE YOUR
COMPLIANCE WITH THE RELEVANT SECURITIES LAWS AND REGULATIONS.
YOU MUST NOTIFY THE UNDERSIGNED IF YOU ENTER INTO ANY ARRANGEMENT WITH A
BROKER-DEALER FOR THE SALE OF SHARES THROUGH A BLOCK TRADE, SPECIAL OFFERING,
EXCHANGE DISTRIBUTION OR SECONDARY DISTRIBUTION OR A PURCHASE BY A
BROKER-DEALER. DEPENDING ON THE CIRCUMSTANCES, SUCH TRANSACTIONS MAY REQUIRE THE
FILING OF A SUPPLEMENT TO THE PROSPECTUS IN ORDER TO UPDATE THE INFORMATION SET
FORTH UNDER THE CAPTION "PLAN OF DISTRIBUTION" IN THE PROSPECTUS.
Should you need any additional copies of the Prospectus, or if you have
any questions concerning the foregoing, please write to me at United
Therapeutics Corporation, ________ Street, ___________. Thank you.
Sincerely,
Chief Financial Officer
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