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EXHIBIT 99.3
SECURITIES PURCHASE AGREEMENT
DATED AS OF JULY 13, 2000
BY AND BETWEEN
AVANT IMMUNOTHERAPEUTICS, INC.
AND
THE PURCHASERS NAMED ON THE SIGNATURE PAGES ATTACHED HERETO
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TABLE OF CONTENTS
Page
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1. DEFINITIONS .............................................................. 1
2. PURCHASE AND SALE; PURCHASE PRICE ........................................ 3
3. REPRESENTATIONS, WARRANTIES, COVENANTS, ETC. OF THE
PURCHASERS ............................................................... 3
4. REPRESENTATIONS, WARRANTIES, COVENANTS, ETC. OF THE
COMPANY................................................................... 6
5. CERTAIN COVENANTS ....................................................... 11
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL .......................... 12
7. CONDITIONS TO THE PURCHASERS' OBLIGATION TO PURCHASE .................... 13
8. INDEMNIFICATION ......................................................... 14
9. MISCELLANEOUS ........................................................... 15
(i)
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THIS SECURITIES PURCHASE AGREEMENT, dated as of July 13, 2000 (this
"Agreement"), by and between AVANT IMMUNOTHERAPEUTICS, INC., a Delaware
corporation, with headquarters located at 119 Fourth Avenue, Needham, MA 02494
(the "Company"), and each of the purchasers set forth on the signature pages
attached hereto (each a "Purchaser," and collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS,
(A) The Purchasers desire to purchase, and the Company desires to sell, upon
the terms and conditions set forth in this Agreement, shares (the "Shares")
of common stock, $.001 par value per share, of the Company (the "Common
Stock"), that will result in the receipt by the Company of aggregate gross
proceeds of approximately US$34.8 million or more; and
(B) Each Purchaser wishes to purchase, upon the terms and conditions stated in
this Agreement, the number of Shares set forth opposite its name on Exhibit
A attached hereto.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 The following terms used in this Agreement shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Aggregate Purchase Price" means the aggregate price paid to the Company
for the Shares by the Purchasers.
"Business Day" means any day other than a Saturday, Sunday or a day on
which commercial banks in The City of Boston are authorized or required by law
or executive order to remain closed.
"Closing Date" means 4:00 p.m., Boston time, on July __, 2000, or such
other time and date as the parties hereto may agree on.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder and published interpretations thereof.
"Disclosure Schedule" means the Disclosure Schedule prepared by the Company
and furnished to the Purchasers prior to the date of execution and delivery of
this Agreement by the Purchasers. Items disclosed in response to a particular
Section of this Agreement in the Disclosure Schedule will be deemed disclosed
for purposes of other Sections as applicable without cross-references.
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"Material Adverse Effect" means any material adverse effect on the
business, operations, assets, condition (financial or other) or prospects of the
Company and its Subsidiaries taken as a whole.
"Nasdaq" means the Nasdaq Stock Market.
"NASD" means the National Association of Securities Dealers, Inc.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"PaineWebber" means PaineWebber Incorporated.
"Permitted Transferee" means any Person who is (a) an "accredited investor"
as defined in Regulation D, or (b) a purchaser who is not a U.S. person within
the meaning of Regulation S, or (c) any other transferee of the Shares as
permitted under the securities laws of the United States.
"Person" means any natural person, corporation, partnership, limited
liability company, trust or unincorporated organization, incorporated
government, governmental agency or political subdivision.
"Polmerix" means Polmerix, Inc., a Delaware corporation.
"Questionnaire" means the Purchaser Questionnaire in the form of Annex A
hereto completed by each Purchaser.
"Registration Rights Agreement," means that certain Registration Rights
Agreement dated as of the date hereof between the Company and each of the
Purchasers, as the same may be amended or modified from time to time.
"Regulation D" means Regulation D under the 1933 Act.
"Regulation S" means Regulation S under the 1933 Act.
"Rule 144" means Rule 144 under the 1933 Act.
"SEC" means the United States Securities and Exchange Commission.
"SEC Reports" means all periodic and other reports filed by the Company
with the SEC pursuant to the 1933 Act and 1934 Act subsequent to January 1, 2000
and prior to the date hereof, in each case as filed with the SEC and including
the information and documents (other than exhibits) incorporated therein by
reference.
"Subsidiary" has the meaning set forth in Section 4.1.
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2. PURCHASE AND SALE; PURCHASE PRICE
2.1 SALE AND PURCHASE OF THE SHARES. Subject to all of the terms and
conditions hereof and in reliance on the representations and warranties set
forth or referred to herein, at the Closing the Company agrees to sell to each
Purchaser and each Purchaser hereby agrees, severally and not jointly, to
purchase, that number of Shares of Common Stock set forth opposite the name of
such Purchaser on Exhibit A attached hereto, at the respective purchase price
(the "Purchase Price") set forth opposite the name of such Purchaser on Exhibit
A attached hereto. The price per share to be sold under this Agreement will be
US$7.85.
2.2 CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") will take place at the offices of Goodwin, Procter & Hoar LLP,
Boston, Massachusetts on the Closing Date or at such other place as the parties
hereto may agree upon. The Closing shall occur when (a) the Company shall have
delivered to the Purchasers share certificates representing the Shares to be
issued to the Purchasers; and (b) each of the Purchasers has delivered an amount
equal to the Purchase Price set forth opposite the name of such Purchaser on the
signature pages attached hereto to the Company.
3. REPRESENTATIONS, WARRANTIES, COVENANTS, ETC. OF THE PURCHASERS
Each of the Purchasers severally, and not jointly, represents and warrants
to, and covenants and agrees with, the Company as follows:
3.1 PURCHASER STATUS. The Purchaser is either (a) an "accredited investor,"
as that term is defined in Rule 501(a) of Regulation D or (b) a purchaser who is
not a U.S person within the meaning of Regulation S.
3.2 INVESTOR SUITABILITY. The Purchaser is purchasing the Shares for its
own account, or for one or more investor accounts for which it is acting as a
fiduciary or agent, in each case for investment, and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
1933 Act. Each Purchaser has such knowledge and experience in financial and
business matters as is necessary to evaluate the risks and merits of an
investment in the Shares. Each Purchaser further acknowledges that (i) its
commitment to purchase the Shares is reasonable in relation to its net worth;
(ii) it has the requisite knowledge with regard to all of the considerations
involved in purchasing the Shares; (iii) it is aware that the right to transfer
the Shares is restricted as set forth herein; (iv) it has the financial ability
to bear the economic risk of the investment in the Company (including the
complete loss of the entire investment), adequate means of providing for its
current and anticipated needs and personal contingencies, if any, and no need
for liquidity with respect to its investment in the Company; and (v) its overall
commitment to investments that are not readily marketable is not
disproportionate to its net worth and its purchasing of the Shares will not
cause such overall commitment to become excessive.
3.3 RESALE RESTRICTIONS.
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(a) Each of the Purchasers understands and acknowledges that (i) the sale or
resale of the Shares has not been and, except as otherwise provided in the
Registration Rights Agreement, is not required to be, registered under the
1933 Act or any applicable state securities laws, and the Shares may not be
transferred unless (a) the Shares are sold pursuant to an effective
registration statement under the 1933 Act, (b) the Purchaser shall have
delivered to the Company an opinion of counsel (which opinion shall be in
form, substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the Shares to be sold or transferred may
be sold or transferred pursuant to an exemption from such registration, (c)
the Shares are sold or transferred to an "affiliate" (as defined in Rule
144 (or a successor rule)) of the Purchaser who agrees to sell or otherwise
transfer the Shares only in accordance with this Section 3.3 and who is an
accredited investor or (d) the Shares are sold pursuant to Rule 144 or in
reliance on Regulation S; (ii) any sale of such Shares made in reliance on
Rule 144 or Regulation S may be made only in accordance with the terms of
said Rule or Regulation and, further, if said Rule or Regulation is not
applicable, any resale of such Shares under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 1933 Act) may require
compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder; and (iii) neither the Company nor any
other person is under any obligation to register such Shares under the 1933
Act or any state securities laws or to comply with the terms and conditions
of any exemption thereunder (in each case, other than as provided herein or
in the Registration Rights Agreement). Notwithstanding the foregoing or
anything else contained herein to the contrary, the Shares may be pledged
as collateral in connection with a bona fide margin account or other
lending arrangement.
(b) Each of the Purchasers understands and acknowledges that the Shares are
deemed to be "restricted securities" as defined in Rule 144 and will
continue to be deemed to be "restricted securities".
(c) Each of the Purchasers understands and acknowledges that until such time as
the Shares have been sold pursuant to an effective registration statement
under the 1933 Act or may otherwise be sold pursuant to Rule 144 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 such Shares):
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "1933 Act"). The
Shares may not be resold, transferred or assigned except in accordance
with the provisions of Regulation S under the 1933 Act, pursuant to
the registration requirements of the 1933 Act or pursuant to an
available exemption from registration."
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The legend set forth above shall promptly be removed and the Company
shall promptly issue a certificate without such legend to the holder
of any Shares upon which it is stamped, if, unless otherwise required
by applicable state securities laws, (a) such Shares are sold under an
effective registration statement filed under the 1933 Act or otherwise
may be sold pursuant to Rule 144 without any restriction as to the
number of securities as of a particular date that can then be
immediately sold or (b) such holder provides the Company with an
opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a
public sale or transfer of such Shares may be made without
registration under the 1933 Act and such sale or transfer is effected.
The Purchaser agrees to sell all Shares, including those represented
by a certificate from which the legend has been removed, in compliance
with applicable prospectus delivery requirements, if any.
3.4 ABSENCE OF APPROVALS. The Purchaser understands that no U.S. federal
or state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Shares.
3.5 INFORMATION PROVIDED. The Purchaser and its advisors, if any, have
requested, received and considered all information relating to the business,
properties, operations, condition (financial or other), results of operations or
prospects of the Company and information relating to the sale of the Shares
deemed relevant by them; the Purchaser and its advisors have been afforded the
opportunity to ask questions of the Company concerning the terms of the offering
of the Shares and the business, properties, operations, condition (financial or
other), results of operations or prospects of the Company and have received
satisfactory answers to any such inquiries. Without limiting the generality of
the foregoing, the Purchaser has had the opportunity to obtain and to review the
SEC Reports and the Disclosure Schedule. In connection with its decision to
purchase the Shares, the Purchaser has relied solely upon the SEC Reports, the
Disclosure Schedule, the representations, warranties, covenants and agreements
of the Company set forth in this Agreement, as well as any investigation of the
Company completed by the Purchaser or its advisors. The Purchaser understands
that its investment in the Shares involves a high degree of risk.
3.6 DUE AUTHORIZATION. Each Purchaser has all requisite power and
authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement and the other agreements executed by the
Purchaser in connection herewith and to consummate the transactions contemplated
hereby and thereby. This Agreement has been duly and validly authorized, duly
executed and delivered by each Purchaser and, assuming due execution and
delivery by the Company, is a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, except as the enforceability hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and general principles of equity,
regardless of whether enforcement is considered in a proceeding in equity or at
law.
3.7 NON-CONTRAVENTION. The execution, delivery and performance of this
Agreement by each Purchaser and the consummation of any of the transactions
contemplated hereby by the Purchaser will not (a) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would
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constitute a default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Purchaser
pursuant to any agreement, instrument, franchise, license or permit to which the
Purchaser is a party or by which any of its properties or assets may be bound or
(b) violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
applicable to such Purchaser or any of its properties or assets, other than such
breaches, defaults or violations that are not reasonably expected to materially
impair the ability of each Purchaser to consummate the transactions contemplated
by this Agreement. The execution, delivery and performance of this Agreement by
each Purchaser and the consummation of the transactions contemplated hereby by
each Purchaser does not and will not violate or conflict with any provision of
the organizational documents of such Purchaser, as currently in effect. No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any government agency or body
applicable to the Purchaser is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby other than those, if any, which have been obtained on or
prior to the Closing Date.
3.8 BROKERS AND FINDERS. No agent, broker, investment banker, financial
advisor or other firm or person engaged by the Purchaser is or will be entitled
to any broker's or finder's fee or any other commission or similar fee in
connection with any of the transactions contemplated by this Agreement.
4. REPRESENTATIONS, WARRANTIES, COVENANTS, ETC. OF THE COMPANY
The Company represents and warrants to the Purchasers that, except as
specifically set forth in the Disclosure Schedule, the following matters are
true and correct on the date of execution and delivery of this Agreement and
will be true and correct on the Closing Date, and the Company covenants and
agrees with the Purchasers as follows:
4.1 ORGANIZATION AND AUTHORITY. The Company and each of its Subsidiaries
(as defined in Rule 405 under the 1933 Act) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to (i) own,
lease and operate its properties and to carry on its business as described in
the SEC Reports and as currently conducted and (ii) to execute, deliver and
perform its obligations under this Agreement and the Registration Rights
Agreement and to consummate the transactions contemplated hereby and thereby.
The Company is duly qualified to do business as a foreign corporation and is in
good standing in all jurisdictions where such qualification is necessary and
where failure so to qualify could have a Material Adverse Effect.
4.2 CAPITALIZATION. The authorized capital of the Company consists of
75,000,000 shares of Common Stock, of which 50,160,477 shares were outstanding
on June 30, 2000; (ii) 1,163,102 shares of Class B Preferred Stock, $2.00 par
value, none of which are outstanding; and (iii) 3,000,000 shares of Class C
Preferred Stock, $.01 par value, of which 350,000 have been designated Class C-1
Junior Participating Cumulative Preferred Stock, none of which are outstanding.
The Company is, directly or indirectly, the registered and beneficial owner of
all of the outstanding shares of capital stock of each of its Subsidiaries.
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Except as set forth on the Disclosure Schedule, there are no outstanding options
or warrants for the purchase of, or other rights to purchase or subscribe for,
or securities convertible into or exchangeable for, Common Stock or other
capital stock of the Company or its Subsidiaries, or any contracts or
commitments to issue or sell Common Stock or other capital stock of the Company
or its Subsidiaries or any such options, warrants, rights or other securities.
All of such outstanding shares of capital stock of the Company and each
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable and all of such options, warrants and other rights have been duly
authorized by the Company and such Subsidiary. None of the outstanding shares of
capital stock and options, warrants and other rights to acquire Common Stock has
been issued in violation of the preemptive rights of any security holder of the
Company or any Subsidiary. The offers and sales of the outstanding shares of
capital stock of the Company and options, warrants and other rights to acquire
Common Stock or other capital stock of the Company were at all relevant times
either registered under the 1933 Act and applicable state securities laws or
exempt from such requirements. Except as set forth in the Disclosure Schedule,
no holder of any of the securities of the Company or any of its Subsidiaries has
any rights ("demand," "piggy-back" or otherwise), to have such securities
registered by reason of the intention to file, filing or effectiveness of a
Registration Statement. Other than Polmerix, the Company has no Subsidiaries.
4.3 THE SHARES AND THE COMMON STOCK. The Shares have been duly authorized,
and when delivered to the Purchasers by the Company against payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable and will not subject the holders thereof to personal liability by
reason of being such holders. The holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other rights to subscribe for
the Shares. The Common Stock is listed for trading on Nasdaq and (i) the Company
and the Common Stock meet the criteria for continued listing and trading on
Nasdaq; (ii) the Company has not been notified by the NASD of any failure or
potential failure to meet the criteria for continued listing and trading on
Nasdaq; and (iii) no suspension of trading in the Common Stock is in effect. The
Company knows of no reason why the Shares will not be eligible for listing on
Nasdaq.
4.4 CORPORATE AUTHORIZATION. The Company's execution, delivery and
performance of this Agreement and the Registration Rights Agreement have been
duly and validly authorized by all requisite corporate action by the Company
and, assuming due execution and delivery by the Purchasers, will be valid and
binding obligations of the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
general principles of equity, regardless of whether enforcement is considered in
a proceeding in equity or at law.
4.5 NON-CONTRAVENTION. The execution and delivery of this Agreement and
the Registration Rights Agreement by the Company and the consummation by the
Company of the offer and sale of the Shares and the other transactions
contemplated by this Agreement and the Registration Rights Agreement do not and
will not, with or without the giving of notice or the lapse of time, or both (i)
result in any violation of any provision of the certificate of incorporation or
by-laws of the Company or any of its Subsidiaries; (ii) conflict with or result
in a breach by the Company or any of its Subsidiaries of any of the terms or
provisions of, or
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constitute a default under, or result in the modification of, or result in the
creation or imposition of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company or any of its Subsidiaries
pursuant to, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any of their respective
properties or assets are bound or affected; (iii) violate or contravene any
applicable law, rule or regulation or any applicable decree, judgment or order
of any court, United States federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over the Company or any of
its Subsidiaries or any of their respective properties or assets; or (iv)
violate or contravene any permit, certification, registration, approval,
consent, license or franchise necessary for the Company or any of its
Subsidiaries to own or lease and operate any of their respective properties and
to conduct any of their respective business or the ability of the Company or any
of its Subsidiaries to make use thereof.
4.6 APPROVALS. No authorization, approval or consent of, or filing with,
any court, governmental body, regulatory agency, self-regulatory organization,
stock exchange or market or the stockholders of the Company is required to be
obtained or made by the Company in connection with the execution, delivery and
performance of this Agreement and the Registration Rights Agreement and sale of
the Shares as contemplated by this Agreement, other than (i) registration of the
resale of the Shares under the 1933 Act as contemplated by the Registration
Rights Agreement, (ii) as may be required under applicable state securities or
"blue sky" laws and (iii) filing one or more Forms D with respect to the Shares
as required under Regulation D.
4.7 INFORMATION PROVIDED. The documents listed on the Disclosure Schedule
provided by or on behalf of the Company to the Purchasers do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, it being understood that for purposes of
this Section 4.7, any statement contained in such information shall be deemed to
be modified or superseded for purposes of this Section 4.7 to the extent that a
statement in any document included in such documents which was prepared or filed
with the SEC on a later date modifies or replaces such statement, whether or not
such later prepared or filed statement so states.
4.8 SEC FILINGS. The Company has timely filed all reports required to be
filed under the 1933 Act and the 1934 Act with the SEC since June 30, 1999 All
of such reports and documents complied, when filed, in all material respects,
with all applicable requirements of the 1933 Act and the 1934 Act. The Company
meets the requirements for the use of Form S-3 for the registration of the
resale of the Shares by the Purchasers and will use its best efforts to maintain
S-3 status with the SEC during the Registration Period (as defined in the
Registration Rights Agreement). The Company does not know of any current facts
or circumstances (including without limitation any required approvals or waivers
of any circumstances that may delay or prevent the obtaining of accountant's
consents) that would prohibit or delay the preparation and filing of a
registration statement on Form S-3 with respect to the Registrable Securities
(as defined in the Registration Rights Agreement).
4.9 ABSENCE OF MATERIAL CHANGES. Except as disclosed in the Disclosure
Schedule attached hereto, since March 31, 2000, there has been no event which
could reasonably be
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expected to have a Material Adverse Effect whether or not arising from
transactions in the ordinary course of business.
4.10 CONDUCT OF BUSINESS. Except as set forth in the SEC Reports, since
March 31, 2000 there has been no Material Adverse Effect and neither the Company
nor any of its Subsidiaries has (i) incurred any material obligation or
liability (absolute or contingent) other than in the ordinary course of business
and in amounts consistent with past practices; (ii) canceled, without payment in
full, any material notes, loans or other obligations receivable or other debts
or claims held by it other than in the ordinary course of business and in
amounts consistent with past practices; (iii) sold, assigned, transferred,
abandoned, mortgaged, pledged or subjected to lien any of its material
properties, tangible or intangible, or rights under any material contract,
permit, license, franchise or other agreement; (iv) conducted its business in a
manner materially different from its business as conducted on such date; or (v)
declared, made or paid or set aside for payment any cash or non-cash
distribution on any shares of its capital stock. Except as disclosed in the SEC
Reports, the Company and its Subsidiaries own, possess or have obtained all
governmental, administrative and third-party licenses, permits, certificates,
registrations, approvals, consents and other authorizations necessary to own or
lease (as the case may be) and operate their properties, whether tangible or
intangible, and to conduct their business or operations as currently conducted,
except such licenses, permits, certificates, registrations, approvals, consents
and authorizations the failure of which to obtain would not have a Material
Adverse Effect.
4.11 ABSENCE OF CERTAIN PROCEEDINGS. Except as described in the SEC Reports
or as set forth in the Disclosure Schedule, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a Material
Adverse Effect or which could adversely affect the validity or enforceability
of, or the authority or ability of the Company to perform its obligations under,
this Agreement or the Registration Rights Agreement. The Company does not have
pending before the SEC any request for confidential treatment of information,
and to the best of the Company's knowledge, no such request will be made by the
Company prior to the Effective Date (as defined in the Registration Rights
Agreement) except as set forth in the Disclosure Schedule; and, to the best of
the Company's knowledge there is not pending or contemplated, and there has been
no, investigation by the SEC involving the Company or any current director or
officer of the Company.
4.12 INTELLECTUAL PROPERTY. Except as set forth in the Disclosure Schedule,
each of the Company and its Subsidiaries owns or has the right to use all patent
rights, trademarks, trade names, service marks, logos, copyrights, formulas,
methods and processes (hereinafter referred to as "Intangible Property")
currently used in connection with the conduct of their respective businesses.
Except as otherwise set forth in the Disclosure Schedule, no royalties or fees
payable by the Company or its Subsidiaries to any Person by reason of the
ownership or use of any Intangible Property have not been paid. Except as set
forth in the Disclosure Schedule, the Company (i) is unaware of any present
infringement upon the Intangible Property; and (ii) does not knowingly or
willfully infringe upon the proprietary rights of others. To the best of the
Company's knowledge and belief, all items of Intangible Property are valid and
are adequate and sufficient to permit the Company to conduct its business as
presently conducted, and no other patent rights are required by the Company for
its operations
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as currently conducted. Except as set forth in the Disclosure Schedule, the
Company, to the best of its knowledge, is unaware of any claim or charge by any
other Person that the Company or its Subsidiaries infringe upon the intellectual
property rights of such Person.
4.13 COMPLIANCE WITH LAW. The Company and its Subsidiaries are in
possession of all material franchises, grants, authorizations, licenses,
permits, easements, variances, exemptions, consents, certificates, approvals and
orders necessary to own, lease and operate their properties and to carry on
their businesses as they are now being conducted, except those the absence of
which would not have a Material Adverse Effect (collectively, the "Permits"),
and there is no action pending or, to the knowledge of the Company, threatened
regarding suspension or cancellation of any of the Permits. To the best of the
Company's knowledge, neither the Company nor any of its Subsidiaries is in
material violation of any statute, law, rule, regulation, ordinance, decision or
order of any governmental agency or body or any court, domestic or foreign,
except where such violation would not individually or in the aggregate have a
Material Adverse Effect; and the Company is not aware of any pending
investigation that would reasonably be expected to lead to such a claim.
4.14 INSURANCE. The Company maintains and will continue to maintain
insurance against loss or damage by fire or other casualty and such other
insurance, including, but not limited to, product liability insurance, in such
amounts and covering such risks as is reasonably adequate consistent with
industry practice for the conduct of its business and the value of its
properties, all of which insurance is in full force and effect.
4.15 TAX MATTERS. The Company has filed all federal, state and local income
and franchise and other tax returns required to be filed and has paid all taxes
due, and no tax deficiency has been determined adversely to the Company which
has had (nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, might have) a Material Adverse Effect.
4.16 INVESTMENT COMPANY. The Company is not an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the SEC thereunder.
4.17 ABSENCE OF BROKERS, FINDERS, ETC No broker, finder or similar Person
is entitled to any commission, fee or other compensation by reason of the
transactions contemplated by this Agreement other than PaineWebber, whose
compensation will be paid solely by the Company.
4.18 NO GENERAL SOLICITATION. No form of general solicitation or general
advertising was used by the Company or, to the best of its knowledge, any other
Person acting on behalf of the Company, in respect of the Shares or in
connection with the offer and sale of the Shares. Neither the Company nor, to
its knowledge, any Person acting on behalf of the Company has, either directly
or indirectly, sold or offered for sale to any Person any of the Shares or,
since January 1, 2000, any other similar security of the Company, except as set
forth on the Disclosure Schedule to this Agreement, and the Company represents
that neither the Company nor any Person authorized to act on its behalf will
sell or offer for sale any such security to, or solicit any offers to buy any
such security from, or otherwise approach or
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negotiate in respect thereof with, any Person so as thereby to cause the
issuance or sale of any of the Shares to be in violation of any of the
provisions of Section 5 of the 1933 Act.
4.19 NO DIRECTED SELLING EFFORTS. The Company has not engaged in any
directed selling efforts (within the meaning of Regulation S) with respect to
the sale of the Shares under this Agreement.
4.20 NO INTEGRATION. The Company has not sold, offered to sell, solicited
offers to buy or otherwise negotiated in respect of any "security" (as defined
in the 1933 Act) that is or could be integrated with the sale of the Shares in a
manner that would require the registration of the Shares under the 1933 Act.
4.21 STOP TRANSFERS. The Company will not register any transfer of the
Shares not made pursuant to the provisions of Regulation S, pursuant to the
registration requirements of the 1933 Act or pursuant to an available exemption
from registration under the 1933 Act.
4.22 NO REGISTRATION. Assuming the accuracy of the representations and
warranties made by, and compliance with the covenants of, the Purchasers in
Section 3 hereof, no registration of the Shares under the 1933 Act is required
in connection with the sale of the Shares to the Purchasers as contemplated by
this Agreement.
4.23 FINANCIAL STATEMENTS. The financial statements of the Company and the
related notes contained in the SEC Reports 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 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
Reports.
4.24 INTERNAL ACCOUNTING CONTROLS. The Company and its Subsidiaries
maintain a system of internal accounting controls sufficient, in the judgment of
the Company's board of directors, to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
4.25 FOREIGN CORRUPT PRACTICES. Neither the Company nor any of its
Subsidiaries, nor, to the knowledge of the Company or any Subsidiary, any agent
or other Person acting on behalf of the Company or any of its Subsidiaries, have
(i) directly or indirectly, used any corporate funds for lawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any lawful payment to foreign or domestic
government officials or employees or to 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 and of which the
Company is aware in
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violation of law; or (iv) violated in any material respect any provision of the
Foreign Corrupt Practices Act of 1977, as amended.
5. CERTAIN COVENANTS
5.1 NASDAQ; REPORTING STATUS. The Company shall use its best efforts to
take such actions as may be necessary and as soon as practicable and in no event
later than 20 days after the Closing Date to file with Nasdaq an application or
other document required by Nasdaq and pay all applicable fees for the listing of
the Shares with Nasdaq and shall provide evidence of such filing to the
Purchasers. So long as any of the Purchasers beneficially own any portion of the
Shares, the Company will use its best efforts to maintain the inclusion of the
Common Stock on Nasdaq or the listing of the Common Stock on a national
securities exchange; provided, however, that this will not restrict the Company
from engaging in any transaction which results in all of the capital stock of
the Company being acquired in a business combination or other acquisition
transaction.
5.2 FORM D. The Company agrees to file one or more Forms D with respect to
the Shares on a timely basis as required under Regulation D to claim the
exemption provided by Rule 506 of Regulation D and to provide a copy thereof to
the Purchasers promptly after such filing.
5.3 STATE SECURITIES LAWS. On or before the Closing Date, the Company
shall take such action as shall be necessary to qualify, or to obtain, an
exemption for the Shares under such of the securities laws of United States
jurisdictions as shall be necessary to qualify, or to obtain an exemption from,
the sale of the Shares. The Company shall furnish the Purchasers with copies of
all filings, applications, orders and grants or confirmations of exemptions
relating to such securities laws on or before the Closing Date.
5.4 CERTAIN FUTURE FINANCINGS AND RELATED ACTIONS.
(a) The Company will not sell, offer to sell, solicit offers to buy or
otherwise negotiate in respect of any "security" (as defined in the
1933 Act) that is or could be integrated with the sale of the Shares
in a manner that would require the registration of the Shares under
the 1933 Act.
(b) The Company shall not offer, sell, contract to sell or issue
(or engage any Person to assist the Company in taking any such
action) any equity securities or securities convertible into,
exchangeable for or otherwise entitling the holder to acquire, any
Common Stock at a price below the market price of the Common Stock
during the period from the date of this Agreement to the Effective
Date, as defined in the Registration Rights Agreement; provided,
however, that nothing in this Section 5.4(b) shall prohibit the
Company from issuing securities (v) pursuant to compensation plans for
employees, directors, officers, advisors or consultants of the Company
and in accordance with the terms of such plans as in effect as of the
date of this Agreement; (w) upon exercise of conversion, exchange,
purchase or similar rights issued, granted or given by the Company and
outstanding as of the date of this Agreement; (x) pursuant to a public
offering underwritten on a firm commitment basis registered under the
1933 Act; (y) for the purpose of funding
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<PAGE>
the acquisition of securities or assets of any entity in a single transaction or
a series of related transactions; or (z) pursuant to a strategic partnership or
alliance or similar commercial agreement (including licensing and similar
arrangements) between the Company and industry participants.
5.5 USE OF PROCEEDS. The net proceeds received by the Company will be used
to fund working capital needs and operating expenses.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The Purchasers understand that the Company's obligation to sell the Shares
to the Purchasers pursuant to this Agreement is conditioned upon satisfaction of
the following conditions precedent on or before the Closing Date (any or all of
which may be waived by the Company in its sole discretion):
(a) the delivery by each of the Purchasers to the Company of an amount
equal to the Purchase Price as set forth opposite its name on the
signature pages attached hereto;
(b) on the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the
transactions contemplated by this Agreement; and
(c) the representations and warranties of the Purchasers contained in this
Agreement and in the Questionnaire shall have been true and correct on
the date of this Agreement and on the Closing Date as if made on the
Closing Date and on or before the Closing Date the Purchasers shall
have performed all covenants and agreements of the Purchasers required
to be performed by the Purchasers on or before the Closing Date.
7. CONDITIONS TO THE PURCHASERS' OBLIGATION TO PURCHASE
The Company understands that the Purchasers' obligation to purchase the
Shares is conditioned upon satisfaction of the following conditions precedent on
or before the Closing Date (any or all of which may be waived by the Purchasers
in their sole discretion):
(a) delivery by the Company to the Purchasers of the share certificates
representing the Shares in accordance with this Agreement;
(b) on the Closing Date, no legal action, suit or proceeding shall be
pending or threatened which seeks to restrain or prohibit the
transactions contemplated by this Agreement;
(c) the representations and warranties of the Company contained in this
Agreement shall have been true and correct on the date of this
Agreement and shall be true and correct on the Closing Date as if
given on and as of the Closing Date (except
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<PAGE>
for representations given as of a specific date, which representations shall be
true and correct as of such date), and on or before the Closing Date the Company
shall have performed all covenants and agreements of the Company contained
herein required to be performed by the Company on or before the Closing Date;
(d) the Company shall have delivered to the Purchasers its certificate,
dated the Closing Date, duly executed by its Chief Executive Officer
to the effect set forth in subparagraphs (b) and (c) of this Section
7;
(e) the receipt by the Purchasers of a certificate, dated the Closing
Date, of the Secretary or Assistant Secretary of the Company
certifying (i) the Certificate of Incorporation and Bylaws of the
Company as in effect on the Closing Date, (ii) all resolutions of the
board of directors (and committees thereof) of the Company relating to
this Agreement, the Registration Rights Agreement and the transactions
contemplated hereby and thereby and (iii) such other matters as are
reasonably requested by the Purchasers;
(f) the Company shall have executed the Registration Rights Agreement;
(g) on the Closing Date, the Purchasers shall have received an opinion of
Goodwin, Procter & Hoar LLP, counsel for the Company, dated the
Closing Date, addressed to the Purchasers, in form, scope and
substance reasonably satisfactory to the Purchasers, substantially in
the form of Annex B hereto; and
(h) on the Closing Date, (i) trading in securities on the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. or Nasdaq shall not
have been suspended or materially limited and (ii) a general
moratorium on commercial banking activities in the Commonwealth of
Massachusetts or the State of New York shall not have been declared by
either federal or state authorities.
8. INDEMNIFICATION
8.1 INDEMNIFICATION BY STOCKHOLDERS. The Company agrees to indemnify and
hold harmless each Purchaser (each a "Company Indemnified Party") from and
against any and all claims, actions, suits, liabilities, losses, damages, and
expenses of every nature and character whether accrued, absolute, contingent or
otherwise (including, but not by way of limitation, all reasonable attorneys'
fees incurred by the Purchaser and all amounts paid by it in settlement of any
claim, action, suit or liability) (collectively, a "Claim"), which arise or
result directly or indirectly by reason of any error, misstatement or omission
in any representation or warranty, or breach of any covenant, made by the
Company in this Agreement, or the Disclosure Schedule; provided, however, that
the indemnification obligation of the Company with respect to any Purchaser
hereunder shall be limited to the dollar amount that such Purchaser invested in
the Company as set forth on the signature page hereto plus any reasonable out-of
pocket expenses, (including, but not by way of limitation) all reasonable
attorney's fees, incurred by such Purchaser. The parties agree that the rights
to indemnification under this Section 8 shall be exclusive of all rights of
indemnification or other
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<PAGE>
remedies that any Company Indemnified Party would otherwise have in connection
with the transactions contemplated by this Agreement.
9. MISCELLANEOUS
9.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS OF THE UNITED
STATES.
9.2 HEADINGS. The headings and captions used in this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
9.3 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
9.4 NOTICES. Any notices required or permitted to be given under the terms
of this Agreement shall be in writing and shall be sent by mail, personal
delivery, by telephone line facsimile transmission or courier and shall be
effective five (5) days after being placed in the mail, if mailed, or upon
receipt, if delivered personally, by telephone line facsimile transmission or by
courier, in each case addressed to a party at such party's address (or telephone
line facsimile transmission number) shown in the introductory paragraph or on
the signature page of this Agreement or such other address (or telephone and
facsimile transmission numbers) as a party shall have provided by notice to the
other parties in accordance with this provision. In the case of any notice to
the Company, such notice should be addressed to the Company at its address shown
in the introductory paragraph of this Agreement, Attention: Dr. Una S. Ryan,
Ph.D. (telephone and facsimile transmission numbers: (781) 433-3101, (781)
433-3191), and a copy shall also be given to: Goodwin, Proctor & Hoar LLP,
Attention: Stuart Cable, P.C., (telephone and facsimile transmission numbers:
(617) 570-1322, (617) 523-1231), and in the case of any notice to the
Purchasers, a copy shall be given to: PaineWebber, Attention: Legal Department
(telephone and facsimile transmission numbers: Don Mittman, telephone: (212)
713-4411, in each case with a copy to: Jeffrey Marcus, Morrison & Foerster LLP,
telephone: (212) 468-8137, facsimile: (212) 468- 7900.
9.5 COUNTERPARTS. This Agreement may be executed in counterparts and by
the parties hereto on separate counterparts, each of which shall be deemed to be
an original but all of which together shall constitute one and the same
instrument. A telephone line facsimile transmission of this Agreement bearing a
signature on behalf of a party hereto shall be legal and binding on such party.
9.6 ENTIRE AGREEMENT; BENEFIT. This Agreement together with the Annexes
and Disclosure Schedule, constitute the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings other than those set forth or referred to
herein and therein. This Agreement, including the Annexes hereto and Disclosure
Schedule, supersede all prior agreements and understandings,
15
<PAGE>
whether written or oral, between the parties hereto with respect to the subject
matter hereof. This Agreement and the terms and provisions hereof are for the
sole benefit of only the Company, the Purchasers and their respective successors
and permitted assigns.
9.7 WAIVER. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, or course of dealing between the parties shall not operate as a waiver
thereof or an amendment hereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
exercise of any other right or power.
9.8 AMENDMENT. No amendment, modification, waiver, discharge or
termination of any provision of this Agreement or consent to any departure by
the Purchasers or the Company therefrom shall in any event be effective unless
the same shall be in writing and signed by the party to be charged with
enforcement, and then shall be effective only in the specific instance and for
the purpose for which given. No course of dealing between the parties hereto
shall operate as an amendment of this Agreement.
9.9 FURTHER ASSURANCES. Each party to this Agreement will perform any and
all acts and execute any and all documents as may be necessary and proper under
the circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
9.10 ASSIGNMENT. Except as otherwise provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto; provided, however,
that the right of the Purchasers to purchase Shares shall not be assignable
without the consent of the Company (such consent not to be unreasonably
withheld).
9.11 EXPENSES. Each of the Company and the Purchasers shall bear its own
expenses in connection with the preparation and negotiation of this Agreement
and the consummation of the transactions contemplated hereby. Notwithstanding
the foregoing, the Company agrees to pay all reasonable fees and disbursements,
not to exceed $25,000, of Morrison & Foerster LLP, counsel to the Purchasers, in
connection with the negotiation, documentation and consummation of this
Agreement and the transactions contemplated hereby.
9.12 TERMINATION. The Purchasers shall have the right to terminate this
Agreement by giving notice to the Company at any time at or prior to the Closing
Date if:
(a) any condition to the Purchasers' obligations hereunder is not
fulfilled; or
(b) the closing shall not have occurred on a Closing Date on or before
July 31, 2000, other than solely by reason of a breach of this
Agreement by the Purchasers.
Any such termination shall be effective upon the giving of notice thereof by the
Purchasers. Upon such termination, the Purchasers shall have no further
obligation to the Company hereunder and the Company shall remain liable for any
breach of this Agreement or the other documents contemplated hereby which
occurred on or prior to the date of such termination.
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9.13 SURVIVAL. The respective representations, warranties, covenants and
agreements of the Company and the Purchasers contained in this Agreement and the
documents delivered in connection with this Agreement shall survive the
execution and delivery of this Agreement and the closing hereunder and delivery
of and payment for the Shares, and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Purchasers or
any Person controlling or acting on behalf of the Purchasers or by the Company
or any Person controlling or acting on behalf of the Company.
9.14 PUBLIC STATEMENTS, PRESS RELEASES, ETC. The Company and the Purchasers
shall have the right to approve before issuance any press releases or any other
public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior
approval of the Purchasers, to make any press release or other public disclosure
with respect to such transactions as is required by applicable law and
regulations, including the 1933 Act and the rules and regulations promulgated
thereunder and the rules and regulations of the Nasdaq National Market (although
the Purchasers and their counsel shall be consulted and provided with a draft
press release by the Company in connection with any such press release or other
public disclosure prior to its release and shall be provided with a final copy
thereof promptly following the release thereof).
9.15 CONSTRUCTION. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party.
9.16 NO CULPABILITY. Each of the Purchasers (other than PaineWebber) (the
"Other Purchasers") represent and warrant to PaineWebber on their own behalf and
on behalf of any beneficial owner which they may represent as follows:
(a) that they have sufficient knowledge and experience and have taken such
professional advice as they think necessary to make their own
evaluation of the merits and risks involved in making the investment
envisaged by this Agreement;
(b) that they have been, and will at all times continue to be, solely
responsible for making their own independent appraisal of and
investigation into the business, financial condition, prospects,
creditworthiness, status and affairs of the Company;
(c) that they are sophisticated investors capable of bearing the economic
risk of losing their entire investment in the Company;
(d) that they understand that PaineWebber is at all times, and will at all
times be, acting on its own behalf and not on behalf of the Other
Purchasers or any of them;
(e) they have not relied, and will not at any time rely, on PaineWebber or
any of its affiliates to provide them with any information relating
to, or to keep under review on their behalf, any business, financial
conditions, prospects, creditworthiness or status of affairs of the
Company or conducting any investigation or due diligence into the
Company; and
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(f) that they understand that they are not clients of PaineWebber and will not
receive the protections that such clients are afforded.
18
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized as of the date
first set forth above.
AVANT IMMUNOTHERAPEUTICS,
INC.
By: /s/ Una S. Ryan
-----------------------
Name: Una S. Ryan
Title: President and CEO
BAYSTAR CAPITAL L.P.
By: /s/ Steven Lamar
------------------------
Name: Steven Lamar
Its Duly Authorized Signatory
BAYSTAR INTERNATIONAL
By: /s/ Steven Lamar
------------------------
Name: Steven Lamar
Its Duly Authorized Signatory
CATALYST PARTNERS, L.P.
By: /s/ Alison Rosen
------------------------
Name: Alison Rosen
Its Duly Authorized Signatory
CATALYST INTERNATIONAL, L.P.
By: /s/ Alison Rosen
--------------------------
Name: Alison Rosen
Its Duly Authorized Signatory
19
<PAGE>
CLARION CAPITAL CORPORATION
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
CLARION PARTNERS, L.P
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
CLARION OFFSHORE FUND LTD.
By: /s/ Morton Cohen
---------------------------------------
Name: Morton Cohen
Its Duly Authorized Signatory
+
DRESDNER RCM BIOTECHNOLOGY FUND
By: /s/ Anthony Ain
---------------------------------------
Name: Anthony Ain
Its Duly Authorized Signatory
FRAMLINGTON HEALTH FUND
By: /s/ Anthony Milford
---------------------------------------
Name: Anthony Milford
Its Duly Authorized Signatory
MUNDER FRAMLINGTON HEALTHCARE FUND
By: /s/ Anthony Milford
---------------------------------------
Name: Anthony Milford
Its Duly Authorized Signatory
20
<PAGE>
JALAA EQUITIES, LP
By: /s/ Jason Aryeh
---------------------------------------
Name: Jason Aryeh
Its Duly Authorized Signatory
HALIFAX FUND, L.P
By: /s/ Steven W. Weiner
---------------------------------------
Name: Steven W. Weiner
Its Duly Authorized Signatory
PICTET BIOTECH
By: /s/ Vincent Ossipow
---------------------------------------
Name: Vincent Ossipow
Its Duly Authorized Signatory
PICTET ASSET MANAGEMENT UK LTD.
For:
Pictet Biotech Fund (Genome)
By: /s/ Sam Perry
---------------------------------------
Name: Sam Perry
Its Duly Authorized Signatory
PETER SEARS
By: /s/ Peter Sears
---------------------------------------
Name: Peter Sears
21
<PAGE>
NARRAGANSETT I, LP
By: /s/ Joseph L. Dowling III
---------------------------------------
Name: Joseph L. Dowling III
Its Duly Authorized Signatory
NARRAGANSETT OFFSHORE, LTD.
By: /s/ Joseph L. Dowling III
---------------------------------------
Name: Joseph L. Dowling III
Its Duly Authorized Signatory
22
<PAGE>
FINSBURY TECHNOLOGY TRUST
By: /s/ C.J. Edge
--------------------------
Name: C.J. Edge
Its Duly Authorized Signatory
CONSULTA TECHNOLOGY FUND
By: /s/ Barry Carroll
---------------------------
Name: Barry Carroll
Its Duly Authorized Signatory
PULSAR TECHNOLOGY FUND
By: /s/ Mr. Nitin Aggarwahl
---------------------------
Name: Mr. Nitin Aggarwahl
Its Duly Authorized Signatory
FGI BIOTECHNOLOGY FUND
By: /s/ Dr. Andrew Clark
----------------------------
Name: Dr. Andrew Clark
Its Duly Authorized Signatory
23
