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EXHIBIT 99.1
PURCHASE AGREEMENT
THIS AGREEMENT is made effective as of the 11th day of August,
2000, by and between InterMune Pharmaceuticals, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with its
principal offices at 1710 Gilbreth Road, Suite 301, Burlingame, California,
94010 and the purchaser whose name and address is set forth on the signature
page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and the Purchaser agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the
terms and conditions of this Agreement, the Company has authorized the sale
to the Purchaser and the Other Purchasers of 2,000,000 shares (the "Shares")
of common stock, par value $0.001 per share (the "Common Stock"), of the
Company.
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the
Closing (as defined in Section 3), the Company will sell to the Purchaser and
the Purchaser will buy from the Company, upon the terms and conditions
hereinafter set forth, the number of Shares (at the purchase price) shown
below:
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
----------- ---------- ----------
$38.00
The Company proposes to enter into this same form of purchase
agreement with certain other investors (the "Other Purchasers") and expects
to complete sales of the Shares to them. None of the Other Purchasers shall
pay a lower purchase price per Share of Common Stock than the purchase price
paid by the Purchaser hereunder. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean the Prudential Vector Healthcare Group, a unit of
Prudential Securities Incorporated.
SECTION 3. DELIVERY OF THE SHARES AT THE CLOSING. The closing of
the purchase and sale of the Shares (the "Closing") shall take place at the
offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New York
10038, immediately following the execution hereof or on such later date or
different location as the parties shall agree in writing, but not prior to
the date that the conditions for Closing set forth below have been satisfied
or
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waived by the appropriate party. The date of the Closing is hereinafter
referred to as the "Closing Date." At the Closing, the Company shall sell and
issue to the Purchaser, and the Purchaser shall purchase from the Company,
the number of Shares set forth in Section 2 above for an aggregate purchase
price of $___________ (the "Purchase Price").
At the Closing, the Company shall deliver to the Purchaser one or
more stock certificates registered in the name of the Purchaser, or in such
nominee name(s) as designated by the Purchaser in writing, representing the
number of Shares set forth in Section 2 above and bearing an appropriate
legend referring to the fact that the Shares were sold in reliance upon the
exemption from registration under the Securities Act of 1933, as amended (the
"Securities Act") provided by Section 4(2) thereof. The name(s) in which the
stock certificates are to be registered are set forth in the Stock
Certificate Questionnaire attached hereto as part of Appendix I. The
Company's obligation to complete the purchase and sale of the Shares and
deliver such stock certificate(s) to the Purchaser at the Closing shall be
subject to the following conditions, any one or more of which may be waived
by the Company: (a) receipt by the Company of same-day funds in the full
amount of the Purchase Price for the Shares being purchased hereunder; (b)
completion of the purchases and sales under the Agreements with all of the
Other Purchasers; and (c) the accuracy of the representations and warranties
made by the Purchasers and the fulfillment of those undertakings of the
Purchasers to be fulfilled prior to the Closing. The Purchaser's obligation
to accept delivery of such stock certificate(s) and to pay for the Shares
evidenced thereby shall be conditioned upon (a) the Company having received
written waivers from a sufficient number of its stockholders so that no
stockholders of the Company (other than the Purchasers) shall have any right
to require the Company to register the sale of any shares owned by such
stockholder in the Resale Registration Statement (defined herein) to be filed
on behalf of the Purchasers and (b) the accuracy in all material respects of
the representations and warranties made by the Company herein and the
fulfillment in all material respects of those undertakings of the Company to
be fulfilled prior to Closing. The Purchaser's obligations hereunder are
expressly not conditioned on the purchase by any or all of the Other
Purchasers of the shares that they have agreed to purchase from the Company.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY. The Company hereby represents and warrants to, and covenants with,
the Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and the Company is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is required, except
where failure to so qualify would not reasonably be expected to have a
Material Adverse Effect (as defined herein).
4.2 AUTHORIZED CAPITAL STOCK. Except as disclosed in or
contemplated by the Confidential Private Placement Memorandum dated August 4,
2000 prepared by the Company, including all Exhibits (except Exhibit D)
supplements and amendments thereto (the "Private Placement Memorandum"), the
Company had authorized and outstanding capital stock as set forth under the
heading "Capitalization" in the Private Placement Memorandum as of the date
set
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forth therein; the issued and outstanding shares of the Company's Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance in all material respects with
all federal and state securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities, and conform in all material respects to the description thereof
contained in the Private Placement Memorandum. Except as disclosed in or
contemplated by the Private Placement Memorandum and as of the date set forth
under the heading "Capitalization" in the Private Placement Memorandum the
Company does not have outstanding any options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, shares of its capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock, stock
bonus and other stock plans or arrangements and the options or other rights
granted and exercised thereunder, set forth in the Private Placement
Memorandum accurately and fairly presents in all material respects the
information required to be shown with respect to such plans, arrangements,
options and rights.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The Shares have been
duly authorized and, when issued, delivered and paid for in the manner set
forth in this Agreement, will be duly authorized, validly issued, fully paid
and nonassessable, and will conform in all material respects to the
description thereof set forth in the Private Placement Memorandum. No
preemptive rights or other rights to subscribe for or purchase exist with
respect to the issuance and sale of the Shares by the Company pursuant to
this Agreement. No further approval or authority of the stockholders or the
Board of Directors of the Company will be required for the issuance and sale
of the Shares to be sold by the Company as contemplated herein.
4.4 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT. The
Company has full legal right, corporate power and authority to enter into
this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company.
The execution, delivery and performance of this Agreement by the Company and
the consummation of the transactions herein contemplated will not violate any
provision of the organizational documents of the Company and will not result
in the creation of any lien, charge, security interest or encumbrance upon
any assets of the Company pursuant to the terms or provisions of, or will not
conflict with, result in the breach or violation of, or constitute, either by
itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument to which the Company is a party or by which the
Company or any of its respective properties may be bound or affected and in
each case which would reasonably be expected to have a material adverse
effect on the financial condition, properties, business, prospects or results
of operations of the Company (a "Material Adverse Effect") or, to the
Company's knowledge, any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to the Company or any of its
respective properties. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental body
is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated
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by this Agreement, except for compliance with the Blue Sky laws and federal
securities laws applicable to the offering of the Shares. Upon their
execution and delivery, and assuming the valid execution thereof by the
Purchaser, this Agreement will constitute valid and binding obligations of
the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except
as the indemnification agreements of the Company in Section 7.3 hereof may be
legally unenforceable.
4.5 ACCOUNTANTS. Ernst & Young LLP, who has expressed its opinion
with respect to the consolidated financial statements to be included in the
Resale Registration Statement (as 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 (the
"Rules and Regulations").
4.6 NO DEFAULTS. Except as disclosed in the Private Placement
Memorandum, and except as to defaults, violations and breaches which
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect, the Company is not in violation or default of any
provision of its certificate of incorporation or bylaws, or in breach of or
default with respect to any provision of any agreement, judgment, decree,
order, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which it is a party or by which it or any of its
properties are bound; and there does not exist any state of fact which, with
notice or lapse of time or both, would constitute an event of default on the
part of the Company as defined in such documents, except such defaults which
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
4.7. CONTRACTS. The contracts described in the Private Placement
Memorandum 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 is in breach of or default under any of such contracts which
would reasonably be expected to have a Material Adverse Effect.
4.8 NO ACTIONS. Except as disclosed in the Private Placement
Memorandum, there are no legal or governmental actions, suits or proceedings
pending or, to the Company's knowledge, threatened to which the Company is or
may be a party or of which property owned or leased by the Company is or may
be the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings, individually or in the aggregate, might
prevent or might reasonably be expected to materially and adversely affect
the transactions contemplated by this Agreement or result in a material
adverse change in the financial condition, properties, business, prospects or
results of operations of the Company (a "Material Adverse Change"); and no
labor disturbance by the employees of the Company exists, to the Company's
knowledge, or is imminent which might reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Private Placement
Memorandum, the Company is not party to or subject to the
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provisions of any material injunction, judgment, decree or order of any
court, regulatory body administrative agency or other governmental body.
4.9 PROPERTIES. The Company has good and marketable title to all
the properties and assets reflected as owned by it in the consolidated
financial statements included in the Private Placement Memorandum, subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except (i)
those, if any, reflected in such consolidated financial statements, or (ii)
those which are not material in amount and do not adversely affect the use
made and intended to be made of such property by the Company. The Company
holds its leased properties under valid and binding leases, with such
exceptions as would not reasonably be expected to have a Material Adverse
Effect. Except as disclosed in the Private Placement Memorandum, the Company
owns or leases all such properties as are necessary to its operations as now
conducted.
4.10 NO MATERIAL CHANGE. Since March 31, 2000 and except as
described in or specifically contemplated by the Private Placement
Memorandum, (i) the Company has not incurred any material liabilities or
obligations, indirect, or contingent, or entered into any material verbal or
written agreement or other transaction which is not in the ordinary course of
business or which could reasonably be expected to have a Material Adverse
Effect; (ii) the Company has not sustained any material loss or interference
with its businesses or properties from fire, flood, windstorm, accident or
other calamity not covered by insurance; (iii) the Company has not paid or
declared any dividends or other distributions with respect to its capital
stock and the Company is not in default in the payment of principal or
interest on any outstanding debt obligations; (iv) there has not been any
change in the capital stock of the Company other than the sale of the Shares
hereunder and the sale of shares of Common Stock to the Other Purchasers and
shares or options issued pursuant to employee equity incentive plans or
purchase plans approved by the Company's Board of Directors, or indebtedness
material to the Company (other than in the ordinary course of business); and
(v) except for the operating losses and negative cash flow the Company has
continued to incur, there has not been a Material Adverse Change.
4.11 INTELLECTUAL PROPERTY. Except as disclosed in or specifically
contemplated by the Private Placement Memorandum, (i) the Company owns or has
obtained valid and enforceable licenses or options for the inventions, patent
applications, patents, trademarks (both registered and unregistered), trade
names, copyrights and trade secrets necessary for the conduct of the
Company's business as currently conducted and as the Private Placement
Memorandum indicates the Company contemplates conducting (collectively, the
"Intellectual Property"); and (ii) to the Company's knowledge (for each of
the following subsections (a) through (e)): (a) there are no third parties
who have any ownership rights to any Intellectual Property that is owned by,
or has been licensed to, the Company for the product indications described in
the Private Placement Memorandum that would preclude the Company from
conducting its business as currently conducted and as the Private Placement
Memorandum indicates the Company contemplates conducting, except for the
ownership rights of the owners of the Intellectual Property licensed or
optioned by the Company; (b) there are currently no sales of any products
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that would constitute an infringement by third parties of any Intellectual
Property owned, licensed or optioned by the Company; (c) there is no pending
or threatened action, suit, proceeding or claim by others challenging the
rights of the Company in or to any Intellectual Property owned, licensed or
optioned by the Company, other than claims which would not reasonably be
expected to have a Material Adverse Effect; (d) there is no pending or
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any Intellectual Property owned, licensed or optioned by
the Company, other than claims which would not reasonably be expected to have
a Material Adverse Effect; and (e) there is no pending or threatened action,
suit, proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
right of others, other than claims which would not reasonably be expected to
have a Material Adverse Effect.
4.12 COMPLIANCE. The Company has not been advised, nor has reason
to believe, that it is not conducting business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, all applicable local,
state and federal environmental laws and regulations; except where failure to
be so in compliance would not reasonably be expected to have a Material
Adverse Effect.
4.13 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 asserted or threatened against it except for such failures to
file, or pay or accrue or such deficiencies which would not reasonably be
expected to have a Material Adverse Effect.
4.14 TRANSFER TAXES. On the Closing Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold to the
Purchaser hereunder will be, or will have been, fully paid or provided for by
the Company and all laws imposing such taxes will be or will have been
complied with in all material respects.
4.15 INVESTMENT COMPANY. The Company is not an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the Investment Company Act of 1940,
as amended.
4.16 OFFERING MATERIALS. The Company has not distributed and will
not distribute prior to the Closing Date any offering material in connection
with the offering and sale of the Shares other than the Private Placement
Memorandum 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 or sale of the Shares, as
contemplated by this Agreement, within the provisions of Section 5 of the
Securities Act, unless such offer, issuance or sale was or shall be within
the exemptions of Section 4 of the Securities Act.
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4.17 INSURANCE. The Company maintains insurance of the types and in
the amounts that the Company reasonably believes is adequate for its
business, including, but not limited to, insurance covering all real and
personal property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured
against by similarly situated companies, all of which insurance is in full
force and effect in all material respects.
4.18 CONTRIBUTIONS. The Company has not at any time since its
incorporation, directly or indirectly, (i) made any unlawful contribution to
any candidate for public office, or failed to disclose fully any contribution
in violation of law, or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar public
or quasi-public duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof.
4.19 ADDITIONAL INFORMATION. The information contained in the
following documents, which the Placement Agent has furnished to the
Purchaser, or will furnish prior to the Closing, does not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading, as of their
respective final dates:
(a) the Company's initial public offering 424(b) prospectus,
dated March 27, 2000;
(b) the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2000;
(c) the Company's press releases dated August 1, 2000,
July 25, 2000, June 28, 2000 and June 26, 2000;
(d) the Private Placement Memorandum, including all addenda
and exhibits thereto; and
(e) all other documents, if any, filed by the Company
with the Securities and Exchange Commission since
March 31, 2000 pursuant to the reporting requirements
of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
4.20 LEGAL OPINION. Prior to the Closing, Cooley Godward LLP,
counsel to the Company, will deliver its legal opinion to the Placement Agent
and the Company reasonably satisfactory to the Placement Agent, their
respective counsel and the Company. Such opinion shall also state that each
of the Purchasers may rely thereon as though it were addressed directly to
such Purchaser.
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4.21 INTELLECTUAL PROPERTY OPINION. Prior to the Closing, Dehlinger
& Associates, patent counsel for the Company, will deliver its legal opinion
to the Placement Agent reasonably satisfactory to the Placement Agent, the
Company and their respective counsel. Such opinion shall also state that each
of the Purchasers may rely thereon as though it were addressed directly to
such Purchaser.
4.22 CERTIFICATE. At the Closing, the Company will deliver to the
Purchaser a certificate executed by the Chairman of the Board or President
and the chief financial or accounting officer of the Company, dated the
Closing Date, in form and substance reasonably satisfactory to the Purchaser,
to the effect that the representations and warranties of the Company set
forth in this Section 4 are true and correct as of the date of this Agreement
and as of the Closing Date, and the Company has complied in all material
respects with all the agreements and satisfied all the conditions herein on
its part to be performed or satisfied on or prior to such Closing Date.
4.23 REGISTRATION RIGHTS. No stockholder of the Company has any
right (which has not been waived or has not expired by reason of lapse of
time following notification of the Company's intent to file a registration
statement on behalf of the Purchaser pursuant to Section 7.1 hereof (the
"Resale Registration Statement")) to require the Company to register the sale
of any shares owned by such stockholder under the Securities Act, in the
Resale Registration Statement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER.
(a) The Purchaser represents and warrants to, and covenants with,
the Company that: (i) the Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved
in the purchase of the Shares, including investments in securities issued by
the Company, and has requested, received, reviewed and considered all
information it deems relevant in making an informed decision to purchase the
Shares; (ii) the Purchaser is acquiring the number of Shares set forth in
Section 2 above in the ordinary course of its business and for its own
account for investment only and with no present intention of distributing any
of such Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares (this representation and warranty
not limiting the Purchaser's right to sell pursuant to the Resale
Registration Statement or, other than with respect to any claims arising out
of a breach of this representation and warranty, the Purchaser's right to
indemnification under Section 7.3); (iii) the Purchaser will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of
the Shares except in compliance with the Securities Act and the Rules and
Regulations; (iv) the Purchaser has completed or caused to be completed the
Purchaser's Questionnaire attached hereto as Appendix I, for use in
preparation of the Resale Registration Statement, and the answers thereto are
true and correct as of the date hereof, and the Purchaser will notify the
Company of any changes therein so that such information will be true and
correct as of the effective date of the Resale Registration Statement; (v)
the Purchaser has, in connection with its decision to purchase the number of
Shares set forth in Section 2 above, relied
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solely upon the Private Placement Memorandum and the documents included
therein and the representations and warranties of the Company contained
herein; and (vi) the Purchaser is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D promulgated under the Securities Act.
(b) The Purchaser understands that the Shares are being offered and
sold to it in reliance upon specific exemptions from the registration
requirements of the Securities Act, the Rules and Regulations and state
securities laws and that the Company is relying upon the truth and accuracy
of, and the Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth
herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Shares.
(c) The Purchaser understands that its investment in the Shares
involves a significant degree of risk and that the market price of the Common
Stock has been volatile and that no representation is being made as to the
future value of the Common Stock. The Purchaser has the knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Shares and has the ability to
bear the economic risks of an investment in the Shares.
(d) The Purchaser understands that no United States federal or
state agency or any other government or governmental agency has passed upon
or made any recommendation or endorsement of the Shares.
(e) The Purchaser understands that, until such time as the Resale
Registration Statement has been declared effective or the Shares may be sold
pursuant to Rule 144 under the Securities Act without any restriction as to
the number of securities as of a particular date that can then be immediately
sold, the Shares may bear a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the
certificates for the Shares):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT."
(f) The Purchaser's principal executive offices are in the
jurisdiction set forth immediately below the Purchaser's name on the
signature pages hereto.
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(g) The Purchaser hereby covenants with the Company not to make any
sale of the Shares under the Resale Registration Statement without
effectively causing the prospectus delivery requirement under the Securities
Act to be satisfied. The Purchaser may satisfy the prospectus delivery
requirements by disclosing to a selling broker the existence of the
requirement to sell the Shares in accordance with the Resale Registration
Statement and making arrangements with such broker to deliver a current
prospectus in connection with any such sale, and the Purchaser acknowledges
and agrees that such Shares are not transferable on the books of the Company
unless the certificate submitted to the transfer agent evidencing the Shares
is accompanied by a separate Officer's Certificate: (i) in the form of
Appendix II hereto, (ii) executed by an officer of, or other authorized
person designated by, the Purchaser, and (iii) to the effect that (A) the
Shares have been sold in accordance with the Resale Registration Statement,
the Securities Act and any applicable state securities or blue sky laws and
(B) the requirement of delivering a current prospectus has been satisfied.
The Purchaser acknowledges that there may occasionally be times when the
Company must suspend the use of the prospectus forming a part of the Resale
Registration Statement until such time as an amendment to the Resale
Registration Statement has been filed by the Company and declared effective
by the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act, to the extent
provided in the last paragraph of Section 7.1. The Purchaser hereby covenants
that it will not sell any Shares pursuant to said prospectus during the
period commencing at the time at which the Company gives the Purchaser
written notice of the suspension of the use of said prospectus and ending at
the time the Company gives the Purchaser written notice that the Purchaser
may thereafter effect sales pursuant to said prospectus, to the extent such
suspension is permitted pursuant to the terms of the last paragraph of
Section 7.1.
(h) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
legal, valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law) and except as the indemnification agreements of the Purchaser in Section
7.3 hereof may be legally unenforceable.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by
the Placement Agent, all covenants, agreements, representations and
warranties made by the Company and the Purchaser herein and in the
certificates for the Shares delivered pursuant hereto shall survive the
execution of this Agreement, the delivery to the Purchaser of the Shares
being purchased and the payment therefor.
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SECTION 7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) As soon as practicable, but in no event later than 15 business
days following the Closing Date, prepare and file with the
Commission the Resale Registration Statement on Form S-1
(which will be converted to Form S-3 as soon as the Company
becomes eligible to register for resale the securities on Form
S-3) relating to the sale of the Shares by the Purchaser and
the Other Purchasers from time to time through the automated
quotation system of the Nasdaq National Market or the
facilities of any national securities exchange on which the
Common Stock is then traded or in privately-negotiated
transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the Commission to
declare the Resale Registration Statement effective within 60
days after the Resale Registration Statement is filed by the
Company;
(c) prepare and file with the Commission such amendments and
supplements to the Resale Registration Statement and the
prospectus used in connection therewith as may be necessary to
keep the Resale Registration Statement effective until the
earlier of (i) twenty-four months after the effectiveness of
the Resale Registration Statement or (ii) the date on which
the Shares may be resold by the Purchasers without
registration by reason of Rule 144(k) under the Securities Act
or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares registered
under the Resale Registration Statement (and to each
underwriter, if any, of such Shares) such reasonable number of
copies of prospectuses and such other documents as the
Purchaser may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares
by the Purchaser; PROVIDED, HOWEVER, that the obligation of
the Company to deliver copies of prospectuses to the Purchaser
shall be subject to the receipt by the Company of reasonable
assurances from the Purchaser that the Purchaser will comply
with the applicable provisions of the Securities Act and of
such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses;
(e) file documents required of the Company for normal
Blue Sky clearance in states specified in writing by the
Purchaser; PROVIDED, HOWEVER, that the Company shall not be
required to qualify to do business or consent to
<PAGE>
service of process in any jurisdiction in which it is not now so
qualified or has not so consented; and
(f) bear all expenses in connection with the procedures in
paragraphs (a) through (e) of this Section 7.1 and the
registration of the Shares pursuant to the Resale Registration
Statement, other than fees and expenses, if any, of more than
one counsel or of any other advisers to the Purchaser or the
Other Purchasers or underwriting discounts, brokerage fees and
commissions incurred by the Purchaser or the Other Purchasers,
if any.
Notwithstanding any other provision of this Agreement, the
Purchaser understands and agrees that there may be periods during which the
Company's Board of Directors may determine, in good faith, that it is in the
best interest of the Company and its stockholders to defer disclosure of
non-public information until such information has reached a more advanced
stage and that during such periods sales of securities under the Resale
Registration Statement and/or the effectiveness of the Resale Registration
Statement may be suspended or delayed. The Purchaser agrees that upon receipt
of any written notice from the Company of the development of any non-public
information, such Purchaser will forthwith discontinue such Purchaser's
disposition of the Shares pursuant to the Resale Registration Statement until
such Purchaser's receipt of a written notice from the Company that the
Purchaser may thereafter effect sales pursuant to an appropriately
supplemented or amended prospectus as well as a copy of such supplemented or
amended prospectus. Notwithstanding the foregoing, the Company may so suspend
or delay the use of the Resale Registration Statement for no more than 80
days in any single twelve-month period. If the Company shall give any such
written notice, the applicable time period during which the Resale
Registration Statement is to remain effective shall be extended by the number
of days during the period from and including the date of the giving of such
notice to discontinue use to and including the date when each seller of a
Share covered by the Resale Registration Statement shall have received the
copies of the appropriate supplemented or amended prospectus.
7.2 TRANSFER OF SHARES AFTER REGISTRATION. The Purchaser agrees
that it will not effect any disposition of the Shares that would constitute a
sale within the meaning of the Securities Act, except as contemplated in the
Resale Registration Statement or as otherwise permitted under the Securities
Act, and that it will promptly notify the Company of any changes in the
information set forth in the Resale Registration Statement regarding the
Purchaser or its plan of distribution.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Purchaser/Affiliate" shall mean any affiliates of
the Purchaser any person who controls the Purchaser or any
affiliate of the Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and any
underwriter of the Purchaser in connection with the sale of
the Shares; and
<PAGE>
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or
relating to the Resale Registration Statement referred to in
Section 7.1.
(a) The Company agrees to indemnify and hold harmless the Purchaser
and each Purchaser/Affiliate, against any losses, claims, damages,
liabilities or expenses, joint or several, to which the Purchaser or such
Purchaser/Affiliates may become subject under the Securities Act, the
Exchange Act, or any other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Company), insofar
as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained
in the Resale Registration Statement, including the prospectus, financial
statements and schedules, and all other documents filed as a part thereof, as
amended at the time of effectiveness of the Resale Registration Statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule
434, of the Rules and Regulations, or the prospectus, in the form first filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations, or
filed as part of the Resale Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required (the "Prospectus"), or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in any of them a material fact required
to be stated therein or necessary to make the statements in the Resale
Registration Statement or any amendment or supplement thereto not misleading
or in the Prospectus or any amendment or supplement thereto not misleading in
the light of the circumstances under which they were made, or arise out of or
are based in whole or in part on any inaccuracy in any material respect in
the representations and warranties of the Company contained in this
Agreement, or any failure of the Company to perform in all material respects
its obligations hereunder or under law, and will reimburse the Purchaser and
each Purchaser/Affiliate for any legal and other expenses as such expenses
are reasonably incurred by the Purchaser or such Purchaser/Affiliate in
connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon (i) an untrue statement or alleged untrue statement or omission or
alleged omission made in the Resale Registration Statement, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Purchaser
expressly for use therein, or (ii) the failure of such Purchaser to comply
with the covenants and agreements contained in Sections 5(g) or 7.2 hereof
respecting the sale of the Shares, or (iii) the inaccuracy of any
representations made by such Purchaser herein or (iv) any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus
that was delivered to the Purchaser prior to the pertinent sale or sales by
the Purchaser.
(b) Each Purchaser will individually, but not jointly, indemnify
and hold harmless the Company, each of its directors, each of its officers
who signed the Resale
<PAGE>
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages, liabilities or expenses to
which the Company, each of its directors, each of its officers who signed the
Resale Registration Statement or controlling person may become subject under
the Securities Act, the Exchange Act, or any other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of
such Purchaser) insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure to comply with the covenants and agreements
contained in Sections 5(g) or 7.2 hereof respecting the sale of the Shares or
(ii) the inaccuracy of any representation made by such Purchaser herein or
(iii) any untrue or alleged untrue statement of any material fact contained
in the Resale Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements in the Resale Registration Statement or any
amendment or supplement thereto not misleading or in the Prospectus or any
amendment or supplement thereto not misleading in the light of the
circumstances under which they were made, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Resale Registration Statement,
the Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by the
Purchaser expressly for use therein, and will reimburse the Company, each of
its directors, each of its officers who signed the Resale Registration
Statement or controlling person for any legal and other expense reasonably
incurred by the Company, each of its directors, each of its officers who
signed the Resale Registration Statement or controlling person in connection
with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this
Section 7.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section 7.3, promptly notify the
indemnifying party in writing thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 7.3 or to the extent it is not
materially prejudiced as a result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, if the defendants in any such action include both
the indemnified party and the indemnifying party, based upon the advice of
such indemnified party's counsel, and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a
conflict of interest between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
<PAGE>
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 7.3 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by such indemnifying party in the
case of paragraph (a), representing the indemnified parties who are parties
to such action, plus local counsel, if appropriate) or (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the reasonable
fees and expenses of counsel shall be at the expense of the indemnifying
party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of any losses, claims, damages, liabilities or
expenses referred to herein (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Purchaser from
the placement of the Common Stock contemplated by this Agreement or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Purchaser on the other shall be deemed
to be in the same proportion as the amount paid by the Purchaser to the
Company pursuant to this Agreement for the Shares purchased by the Purchaser
that were sold pursuant to the Resale Registration Statement bears to the
difference (the "Difference") between the amount the Purchaser paid for the
Shares that were sold pursuant to the Resale Registration Statement and the
amount received by the Purchaser from such sale. The relative fault of the
Company on the one hand and the Purchaser on the other shall be determined by
reference to, among other things, whether the untrue or alleged statement of
a material fact or the omission or alleged omission to state a material fact
or the inaccurate or the alleged inaccurate representation and/or warranty
relates to information supplied by the Company or by the Purchaser and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in paragraph (c) of this Section 7.3, any legal or other fees or
expenses
<PAGE>
reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in paragraph (c) of
this Section 7.3 with respect to the notice of the threat or commencement of
any threat or action shall apply if a claim for contribution is to be made
under this paragraph (d); PROVIDED, HOWEVER, that no additional notice shall
be required with respect to any threat or action for which notice has been
given under paragraph (c) for purposes of indemnification. The Company and
the Purchaser agree that it would not be just and equitable if contribution
pursuant to this Section 7.3 were determined solely by pro rata allocation
(even if the Purchaser were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this paragraph (d). Notwithstanding the
provisions of this Section 7.3, the Purchaser shall not be required to
contribute in respect of indemnification or contribution any amount in excess
of the amount by which the Difference exceeds the amount of any damages that
the Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to indemnification or contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Purchaser's obligations to contribute pursuant to this Section 7.3 are
individual and not joint.
(e) Notwithstanding the foregoing, under no circumstances shall any
indemnification payment to be made by any Purchaser pursuant to Section
7.3(b) exceed the amount of net proceeds paid to the Company by such
Purchaser for Shares sold pursuant to this Offering.
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 upon the passage of two years from the effective date of the Resale
Registration Statement covering such Shares or at such time as an opinion of
counsel satisfactory in form and substance to the Company shall have been
rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
7.5 INFORMATION AVAILABLE. So long as the Resale Registration
Statement is effective covering the resale of Shares owned by the Purchaser,
the Company will furnish to the Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Stockholders, within 120 days after
the end of each fiscal year of the Company), one copy of (i)
its Annual Report to Stockholders (which Annual Report shall
contain financial statements audited in accordance with
generally accepted accounting principles by a national firm of
certified public accountants), (ii) if not included in
substance in the Annual Report to Stockholders, upon the
request of the Purchaser, its Annual Report on Form 10-K,
(iii) upon the request of the Purchaser, its Quarterly Reports
on Form 10-Q, (iv) upon the request of the Purchaser, its
Current Reports on Form 8-K, and (v) a full copy of the
<PAGE>
particular Resale Registration Statement covering the Shares
(the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, all exhibits excluded by the
parenthetical to subparagraph (a)(v) of this Section 7.5; and
(c) upon the request of the Purchaser, a reasonable number of copies
of the prospectuses to supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Resale Registration Statement
covering the Shares and will otherwise cooperate with the Purchaser conducting
an investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters, subject to appropriate
confidentiality limitations.
7.6 LISTING. The Company shall use its best efforts to obtain and,
so long as the Purchaser owns any of the Shares, maintain the listing and
trading of its Common Stock on the Nasdaq National Market and shall comply in
all respect with the Company's reporting, filing and other obligations under
the bylaws or rules of the National Association of Securities Dealers, Inc.
and such exchange, as applicable.
SECTION 8. BROKER'S FEE. The Purchaser acknowledges that the
Company intends to pay to the Placement Agent a fee in respect of the sale of
the Shares to the Purchaser. Each of the parties hereto hereby represents
that, on the basis of any actions and agreements by it, there are no other
brokers or finders entitled to compensation in connection with the sale of
the Shares to the Purchaser.
<PAGE>
SECTION 9. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
InterMune Pharmaceuticals, Inc.
1710 Gilbreth Road, Suite 301
Burlingame, California 94010
Attention: General Counsel
Facsimile: (650) 259-0774
with a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Attention: Robert Jones and Laura Berezin
Facsimile: (650) 849-7400
or to such other person at such other place as the Company
shall designate to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
SECTION 10. PUBLIC STATEMENTS. The Company shall not issue any
public statement or press release, or otherwise disclose in any manner the
identity of the Purchaser or that the Purchaser has purchased the Shares
without the prior written consent of the Purchaser; PROVIDED, HOWEVER, that
the Company may disclose such information in the Resale Registration
Statement.
SECTION 11. CHANGES. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
SECTION 12. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed to be part of this Agreement.
SECTION 13. SEVERABILITY. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability
<PAGE>
of the remaining provisions contained herein shall not in any way be affected
or impaired thereby.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
federal law of the United States of America.
SECTION 15. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
SECTION 16. ENTIRE AGREEMENT. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with
respect to the matters covered herein and therein and, except as specifically
set forth herein or therein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such
matters.
SECTION 17. THIRD PARTY BENEFICIARIES. This Agreement is intended
for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day and
year first above written.
INTERMUNE PHARMACEUTICALS, INC.
By:_________________________________
Name: W. Scott Harkonen
Title: President and Chief Executive Officer
Print or Type:
Name of Purchaser
(Individual or Institution):
---------------------------------
Name of Individual representing
Purchaser (if an Institution):
---------------------------------
Title of Individual representing
Purchaser (if an Institution):
---------------------------------
Signature by:
Individual Purchaser or Individual
representing Purchaser:
---------------------------------
Address: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
<PAGE>
SUMMARY INSTRUCTION SHEET FOR PURCHASER
---------------------------------------
(to be read in conjunction with the entire
Purchase Agreement)
A. Complete the following items on BOTH Purchase Agreements:
1. Page 18 - Signature:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an
Institution)
(iii) Title of Individual representing Purchaser (if an
Institution)
(iv) Signature of Individual Purchaser or Individual
representing Purchaser
2. Appendix I - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire.
3. Return BOTH properly completed and signed Purchase Agreements
including the properly completed Appendix I to:
Prudential Vector Healthcare Group
1751 Lake Cook Road, Suite 350
Deerfield, Illinois 60015
Attention: Robert Harrod
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Placement Agent at a
later date.
C. Upon the resale of the Shares by the Purchasers after the Resale
Registration Statement covering the Shares is effective, as described
in the Purchase Agreement, the Purchaser:
(i) must deliver a current prospectus of the Company to
the buyer (prospectuses must be obtained from the
Company at the Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the
Company so that the Shares may be properly
transferred.
<PAGE>
Appendix I
(one of two)
INTERMUNE PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
-------------------------------
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be
registered in (this is the name that will
appear on your stock certificate(s)). You
may use a nominee name if appropriate: _______________________
2. The relationship between the Purchaser of
the Shares and the Registered Holder listed
in response to item 1 above: _______________________
3. The mailing address of the Registered Holder
listed in response to item 1 above: _______________________
_______________________
_______________________
_______________________
4. The Social Security Number or Tax Identification
Number of the Registered Holder listed in
response to item 1 above: _______________________
<PAGE>
Appendix I
(two of two)
INTERMUNE PHARMACEUTICALS, INC.
PURCHASER'S QUESTIONNAIRE
-------------------------
In connection with the preparation of the Resale Registration
Statement, please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Resale
Registration Statement, please state your or your organization's name exactly as
it should appear in the Resale Registration Statement:
2. Please provide the number of shares that you or your
organization will own immediately after Closing, including those Shares
purchased by you or your organization pursuant to this Purchase Agreement and
those shares purchased by you or your organization through other transactions:
3. Have you or your organization had any position, office or
other material relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships
below:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
4. Are you (i) an NASD Member (see definition), (ii) a
Controlling (see definition) shareholder of an NASD Member, (iii) a Person
Associated with a Member of the NASD (see definition), or (iv) an Underwriter or
a Related Person (see definition) with respect to the proposed offering; or (b)
do you own any shares or other securities of any NASD Member not purchased in
the open market; or (c) have you made any outstanding subordinated loans to any
NASD Member?
<PAGE>
Answer: [ ] Yes [ ] No If "yes," please describe below
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
NASD MEMBER. The term "NASD member" means either any broker or dealer
admitted to membership in the National Association of Securities Dealers,
Inc. ("NASD"). (NASD Manual, By-laws Article I, Definitions)
CONTROL. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power, either individually or with others, to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)
PERSON ASSOCIATED WITH A MEMBER OF THE NASD. The term "person associated
with a member of the NASD" means every sole proprietor, partner, officer,
director, branch manager or executive representative of any NASD Member, or any
natural person occupying a similar status or performing similar functions, or
any natural person engaged in the investment banking or securities business who
is directly OR INDIRECTLY controlling or controlled by a NASD Member, whether or
not such person is registered or exempt from registration with the NASD pursuant
to its bylaws. (NASD Manual, By-laws Article I, Definitions)
UNDERWRITER OR A RELATED PERSON. The term "underwriter or a related
person" means, with respect to a proposed offering, underwriters, underwriters'
counsel, financial consultants and advisors, finders, members of the selling or
distribution group, and any and all other persons associated with or related to
any of such persons. (NASD Interpretation)
<PAGE>
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
------------------------------------------
The undersigned, [an officer of, or other person duly authorized by]
-------------------------------------------------------------
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on _______
in accordance with
[date]
Resale Registration Statement number _____________________________________
[fill in the number of or otherwise
_______________________________________ and the requirement of delivering a
identify Resale Registration Statement]
current prospectus by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or Institution): ______________________
Name of Individual Representing
Purchaser (if an Institution): ______________________
Title of Individual Representing
Purchaser (if an Institution): ______________________
Signature by:
Individual Purchaser or Individual
Representing Purchaser: ______________________
