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Exhibit 4.3
NEORX CORPORATION
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of August 23, 2000, between NeoRx
Corporation, a Washington corporation (the "Company"), and the purchaser listed
on Schedule A attached hereto (the "Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the issuance and sale of up to 2,450,000 shares (the "Shares") of
common stock, par value $0.02 per share (the "Common Stock"), of the Company
(the "Offering").
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, the Purchaser
agrees to purchase, and the Company agrees to sell and issue to the Purchaser,
at the Closing (as defined below), that number of Shares set forth opposite the
Purchaser's name on Schedule A attached hereto.
2.2 PURCHASE PRICE
The purchase price of each Share (the "Per Share Price") shall be
$15.00.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing"), shall occur at the offices of Perkins Coie LLP, 1201 Third Avenue,
48th Floor, Seattle, Washington 98101, counsel to the Company, at 5:00 p.m. PDT
on August 25, 2000 or such other time and date as may be agreed by the parties.
(b) At the Closing, the Company shall authorize its transfer
agent (the "Transfer Agent") to issue 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
provided by Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 under the Securities Act. The Company will
deliver certificates representing the number of Shares set forth in Section 2
against delivery of payment for the Shares by the Purchaser via wire transfer to
the account designated in Schedule B.
(c) The Company's obligation to complete the purchase and sale of
the Shares shall be subject to the following conditions, any one or more of
which may be waived by the Company:
(i) receipt by the Company of same-day funds in the full
amount of the purchase price for the Shares being
purchased under this Agreement; and
(ii) the accuracy in all material respects of the
representations and warranties made by the Purchaser and
the fulfillment in all material respects of those
undertakings of the Purchaser to be fulfilled on or
before the Closing.
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(d) The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by
the Purchaser:
(i) the representations and warranties made by the Company
in this Agreement shall be accurate in all material
respects and the undertakings of the Company shall have
been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchaser a
certificate executed by the president and chief
operating officer or other executive 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 Section 4 hereof are true and correct in
all material respects as of the date of this Agreement
and as of the Closing Date, and that the Company has
complied with all the agreements and satisfied all the
conditions in this Agreement on its part to be performed
or satisfied on or before the Closing date; and
(iii) the Company shall have obtained aggregate gross proceeds
of at least $20 million from the Offering on the Closing
date.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Washington. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter into
and perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company.
4.2 CAPITALIZATION
(a) The authorized capital stock of the Company consists of
60,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock.
(b) As of July 21, 2000, the issued and outstanding capital stock
of the Company consists of 23,573,579 shares of Common Stock and the shares of
Series 1 convertible exchangeable preferred stock described in subsection (f)
below. The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
have not been issued in violation of or are not otherwise subject to any
preemptive or other similar rights.
(c) The Company has reserved an aggregate of 4,750,000 shares of
Common Stock for issuance upon the exercise of stock options granted or
available for future grant under the Company's 1994 Stock Option Plan and its
1991 Stock Option Plan for Non-Employee Directors, of which options to purchase
an aggregate of 3,392,474 shares of Common Stock have been granted and are
outstanding and an aggregate of 520,649 shares were available for grant at July
31, 2000.
(d) The Company has reserved 305,000 shares of Common Stock for
issuance upon the exercise of outstanding warrants to purchase Common Stock.
(e) The Company has reserved 250,000 shares of Common Stock for
issuance under its 1991 Restricted Stock Program, of which 190,250 remained
available for grant at July 31, 2000.
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(f) 205,340 shares of Series 1 Convertible Preferred Stock of the
Company were convertible into 234,088 shares of the Common Stock as of July 31,
2000.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company, and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES
(a) The Shares have been duly authorized for issuance and sale to
the Purchaser pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Washington law.
(b) The issuance of the Shares is not subject to preemptive or
other similar rights. No further approval or authority of the shareholders 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 in this Agreement.
Except for shareholders who purchase Shares in the Offering, no shareholder of
the Company has any right (other than any right that has been waived following
notification of the Company's intent to file the Registration Statement (as
hereinafter defined) or has expired by reason of lapse of time) to require the
Company to register the sale of any securities owned by such holder in such
Registration Statement.
(c) Subject to the accuracy of the Purchaser's representations
and warranties in Section 5 of this Agreement, the offer, sale, and issuance of
the Shares in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act and from the registration or qualification requirements of the
laws of any applicable state or United States jurisdiction.
4.4 FINANCIAL STATEMENTS
The financial statements included in the Company Documents (as
hereinafter defined) present fairly the financial position of the Company as of
the dates indicated and the results of their operations for the periods
specified. Except as otherwise stated in such Company Documents, such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and any supporting schedules included
with the financial statements present fairly the information stated in the
financial statements. The financial and statistical data set forth in the
Company Documents were prepared on an accounting basis consistent with such
financial statements.
4.5 NO MATERIAL CHANGE
Since December 31, 1999,
(a) there has been no material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business;
(b) there have been no transactions entered into by the Company
other than those in the ordinary course of business, which are material with
respect to the Company; and
(c) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, except
for the approval by the Board of Directors of the payment of the Series 1
Preferred Stock dividend of $1.21875 per share, payable on June 1, 2000 for
shareholders of record on May 19, 2000.
The Company has no material contingent obligations.
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4.6 ENVIRONMENTAL
Except as would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Company,
(a) the Company is in compliance with all applicable
Environmental Laws (as defined below);
(b) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals; and
(c) there are no pending or, to the best knowledge of the
Company, threatened Environmental Claims against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating to any Environmental Law.
4.7 NO DEFAULTS
The Company is not in violation of its articles of incorporation or
bylaws or in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or agreement to which the Company
is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject.
4.8 LABOR MATTERS
No labor dispute with the employees of the Company exists or, to the
best knowledge of the Company, is imminent.
4.9 NO ACTIONS
There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, would result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, or which, singly or in the aggregate, would
materially and adversely affect the properties or assets thereof or which would
materially and adversely affect the consummation of this Agreement, nor, to the
best knowledge of the Company, is there any reasonable basis therefor. The
Company is not in default with respect to any judgment, order or decree of any
court or governmental agency or instrumentality which, singly or in the
aggregate, would have a material adverse effect on the assets, properties or
business of the Company.
4.10 INTELLECTUAL PROPERTY
(a) The Company, to the best of its knowledge, owns or is
licensed to use all patents, patent applications, inventions, trademarks, trade
names, applications for registration of trademarks, service marks, service mark
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (in this Agreement called the
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"Proprietary Rights") that are material to the business of the Company as now
conducted and as proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company
has not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any Proprietary Rights or
with respect to any license of Proprietary Rights which are material to the
business of the Company.
(c) No action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, and has not entered into or is not a
party to any contract which restricts or impairs the use of any such Proprietary
Rights in a manner which would have a material adverse effect on the use of any
of the Proprietary Rights.
(e) No Proprietary Rights used by the Company, and no services or
products sold by the Company, conflict with or infringe upon any proprietary
rights of any third party. The Company has not received written notice of any
pending conflict with or infringement upon such third-party proprietary rights.
(f) The Company has not entered into any consent,
indemnification, forbearance to sue or settlement agreement with respect to
Proprietary Rights other than in the ordinary course of business. No claims have
been asserted by any person with respect to the validity of the Company's
ownership or right to use the Proprietary Rights and, to the best knowledge of
the Company, there is no reasonable basis for any such claim to be successful.
(g) The Proprietary Rights that are material to the business of
the Company are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or cancelled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
are in good standing.
(h) To the best of its knowledge, the Company has complied, in
all material respects, with its obligations relating to the protection of the
Proprietary Rights which are material to the business of the Company used
pursuant to licenses.
(i) To the best knowledge of the Company, no person is infringing
on or violating the Proprietary Rights.
4.11 PERMITS
The Company possesses and is operating in compliance with all material
licenses, certificates, consents, authorities, approvals and permits from all
state, Federal, foreign and other regulatory agencies or bodies necessary to
conduct the businesses now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any such
permit or any circumstance which would lead it to believe that such proceedings
are reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.12 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
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(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
4.13 PROPERTIES
The Company has good and marketable title to its properties, free and
clear of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real property held under lease by the Company is held
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company.
The Company owns or leases all such properties as are necessary to its business
or operations as now conducted.
4.14 COMPLIANCE
The Company has conducted and is conducting its business in compliance
with all applicable Federal, state, local and foreign statutes, laws, rules,
regulations, ordinances, codes, decisions, decrees, directives and orders,
except where the failure to do so would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the Company.
4.15 SECURITY MEASURES
The Company takes security measures designed to enable the Company to
assert trade secret protection in its non-patented technology.
4.16 CONTRIBUTIONS
To the best of the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation.
4.17 USE OF PROCEEDS; INVESTMENT COMPANY
The Company intends to use the net proceeds from the sale of the Shares
for research and development, pre-launch activities, general corporate purposes
and working capital. The Company is not now, and after the sale of the Shares
under this Agreement and under all other agreements and the application of the
net proceeds from the sale of the Shares described in the preceding sentence
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4.18 PRIOR OFFERINGS
All offers and sales of capital stock of the Company before the date of
this Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
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4.19 TAXES
The Company has filed all material tax returns required to be filed,
which returns are true and correct in all material respects, and the Company is
not in default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
4.20 OTHER GOVERNMENTAL PROCEEDINGS
To the Company's knowledge, there are no rulemaking or similar
proceedings before The United States Food and Drug Administration or comparable
Federal, state, local or foreign government bodies that involve or affect the
Company, which, if the subject of an action unfavorable to the Company, would
reasonably be expected to materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or business
prospects of the Company.
4.21 NON-COMPETITION AGREEMENTS
To the knowledge of the Company, any full-time employee who has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company is neither in violation of nor
is expected to be in violation of that agreement as a result of the business
currently conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 TRANSFER TAXES
On the Closing date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Shares to be sold to the Purchaser under this Agreement will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.23 INSURANCE
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering all real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 GOVERNMENTAL CONSENTS
No registration, authorization, approval, qualification or consent of
any court or governmental authority or agency is necessary in connection with
the execution and delivery of this Agreement or the offering, issuance or sale
of the Shares under this Agreement, except such as may be required under the
Securities Act or the rules and regulations promulgated thereunder or state
securities or Blue Sky laws, or such as may be required by the National
Association of Securities Dealers, Inc.
4.25 SECURITIES AND EXCHANGE COMMISSION FILINGS
The Company has timely filed with the Securities and Exchange Commission
(the "Commission") all documents required to be filed by the Company under the
Exchange Act of 1934, as amended (the "Exchange Act.")
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4.26 ADDITIONAL INFORMATION
The Company represents and warrants that the information contained in
the following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000 and June 30, 2000;
(c) the Company's Proxy Statement for its 1999 Annual Meeting of
Shareholders; and
(d) all other documents, if any, filed by the Company with the
Commission since January 1, 2000 pursuant to the reporting requirements of the
Exchange Act.
4.27 CONTRACTS
The contracts described in the Company Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a material adverse effect on the business, properties or assets
of the Company. Neither the Company nor, to the best knowledge of the Company,
any other party is in breach of or default under any such contracts.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
5.1 SECURITIES LAW REPRESENTATIONS AND WARRANTIES
The Purchaser represents, warrants and covenants to the Company as
follows:
(a) 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.
(b) 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 (as defined for purposes of the Hart-Scott-Rodino Antitrust
Improvement Act of 1976 and the regulations thereunder) only, and has no present
intention of distributing any of the Shares nor any arrangement or understanding
with any other persons regarding the distribution of such Shares within the
meaning of Section 2(11) of the Securities Act, other than as contemplated in
Section 7 of this Agreement.
(c) 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.
(d) The Purchaser has completed or caused to be completed the
Stock Certificate Questionnaire and the Registration Statement Questionnaire,
attached to this Agreement as Appendices I and II, for use in preparation of the
Registration Statement (as defined in Section 7.3 below), and the answers to the
Questionnaires are true and correct as of the date of this Agreement and will be
true and correct as of the effective date of the Registration Statement;
provided that the Purchaser shall be entitled to update such information by
providing notice thereof to the Company before the effective date of such
Registration Statement.
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(e) The Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 2 above, relied solely upon
the Company Documents and the representations and warranties of the Company
contained in this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act.
5.2 RESALES OF SHARES
(a) The Purchaser hereby covenants with the Company not to make
any sale of the Shares without satisfying the requirements of the Securities Act
and the Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such Shares are
not transferable on the books of the Company pursuant to a resale under the
Registration Statement 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 III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been
satisfied.
(b) The Purchaser acknowledges that there may occasionally be
times when the Company determines the use of the prospectus forming a part of
the Registration Statement (the "Prospectus," as further defined in Section
7.3.1 below) should be suspended until such time as an amendment or supplement
to the Registration Statement or the Prospectus has been filed by the Company
and any such amendment to the Registration Statement is declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The Purchaser hereby
covenants that it will not sell any Shares pursuant to the Prospectus during the
period commencing at the time at which the Company gives the Purchaser written
notice of the suspension of the use of the Prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to the Prospectus. The Company may, upon written notice to
the Purchaser, suspend the use of the Prospectus for two 30-day periods in any
365-day period based on the reasonable determination of the Company's Board of
Directors that there is a significant business purpose for such determination,
such as pending corporate developments, public filings with the SEC or similar
events. The Company shall in no event be required to disclose the business
purpose for which it has suspended the use of the Prospectus if the Company
determines in its good faith judgment that the business purpose should remain
confidential.
(c) The Purchaser further covenants to notify the Company
promptly of the sale of any of its Shares.
5.3 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or 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
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it
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or any of them may be bound, or to which any of the property or assets of the
Purchaser is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Purchaser or any applicable statute,
law, rule, regulation, ordinance, decision, directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Purchaser in this Agreement and in the certificates for the Shares
delivered pursuant to this Agreement shall survive the execution of this
Agreement, the delivery to the Purchaser of the Shares being purchased and the
payment therefor.
7. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT
7.1 REGISTRATION OF SHARES
7.1.1 REGISTRATION STATEMENT; EXPENSES
The Company shall use its best efforts to:
(a) as soon as practicable, but not more than 10 business days
after the Closing, prepare and file with the Commission a Registration Statement
on Form S-3 relating to the sale of the Shares by the Purchaser from time to
time on the Nasdaq National Market (or the facilities of any national securities
exchange on which the Company's Common Stock is then traded) or in privately
negotiated transactions (the "Registration Statement");
(b) subject to receipt of necessary information from the
Purchaser, cause the Commission to notify the Company of the Commission's
willingness to declare the Registration Statement effective within 90 days after
the Registration Statement is filed with the Commission;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus (as defined in
Section 7.3.1 below) and take such other action, if any, as may be necessary to
keep the Registration Statement effective until the earlier of (i) two years
after the effective date of the Registration Statement, (ii) the date on which
the Shares may be resold by the Purchaser without registration or without regard
to any volume limitations by reason of Rule 144 under the Securities Act or any
other rule of similar effect or (iii) all of the Shares have been sold pursuant
to the Registration Statement or Rule 144 under the Securities Act or any other
rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, 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 the Prospectus 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 the Prospectus;
(e) during the period when copies of the Prospectus are required
to be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations promulgated thereunder;
(f) file documents required of the Company for customary Blue Sky
clearance in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (f) of this Section 7.1.1 and the registration of the
Shares pursuant to the Registration Statement, other than any fees
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and expenses of counsel or other advisers to the Purchaser, brokerage fees and
commissions incurred by the Purchaser.
The Purchaser acknowledges and agrees that the Registration Statement
filed under this Section, in addition to the Shares held by the Purchaser, shall
include Shares held by other purchasers in the Offering and, at the Company's
election, may include shares of Common Stock held by other Company shareholders
or issuable under any warrants, options or convertible securities.
7.1.2 DELAY IN EFFECTIVENESS OF REGISTRATION STATEMENT
In the event that the Registration Statement is not declared effective
within 90 days after the filing of the Registration Statement with the
Commission, the Company shall pay to the Purchaser liquidated damages in an
amount equal to 0.25% of the number of Shares purchased by the Purchaser
pursuant to this Agreement for each week thereafter that the Registration
Statement is not declared effective. Such liquidated damages shall be paid
through the issuance of additional Shares at such time as the Registration
Statement is declared effective. No liquidated damages shall be paid under this
Agreement if effectiveness of the Registration Statement is prevented or delayed
due to fire, explosion, flood, riot, labor dispute, accident, act of God, change
in existing regulation or law, or other similar event beyond the Company's
reasonable control.
7.2 TRANSFER OF SHARES AFTER REGISTRATION
The Purchaser agrees that it will not effect any disposition of the
Shares or its right to purchase the Shares that would constitute a sale within
the meaning of the Securities Act, except as contemplated in the Registration
Statement referred to in Section 7.1 or as otherwise permitted by law, and that
it will promptly notify the Company of any changes in the information set forth
in the Registration Statement regarding the Purchaser or its plan of
distribution.
7.3 INDEMNIFICATION
For the purpose of this Section 7.3, the term "Registration Statement"
shall include any preliminary or final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement referred to in
Section 7.1.
7.3.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Purchaser and each
person, if any, who controls the Purchaser within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses, joint or
several, to which the Purchaser or such 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 the Company, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations under this Agreement or
under law, and will reimburse the Purchaser and each such controlling person for
any legal and other expenses as such expenses are reasonably incurred by the
Purchaser or such controlling person 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
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<PAGE> 12
that any such loss, claim, damage, liability or expense arises out of or is
based upon (i) an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus or any
amendment or supplement of the Registration Statement or Prospectus in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Purchaser expressly for use in the Registration Statement or
the Prospectus, or (ii) the failure of the Purchaser to comply with the
covenants and agreements contained in Sections 5.2 or 7.2 of this Agreement
respecting resale of the Shares, or (iii) the inaccuracy of any representations
made by the Purchaser in this Agreement or (iv) any untrue statement or omission
of a material fact required to make such statement not misleading in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
the Purchaser before the pertinent sale or sales by the Purchaser.
7.3.2 INDEMNIFICATION BY THE PURCHASER
The Purchaser will indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses to which the
Company, each of its directors, each of its officers who signed the Registration
Statement 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 the Purchaser, which consent
shall not be unreasonably withheld) 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 5.2 or 7.2 of this Agreement respecting the
sale of the Shares or (ii) the inaccuracy of any representation made by the
Purchaser in this Agreement or (iii) any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement to the Registration Statement or Prospectus, 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 therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchaser expressly
for use therein, and the Purchaser will reimburse the Company, each of its
directors, each of its officers who signed the 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 Registration
Statement or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action.
7.3.3 INDEMNIFICATION PROCEDURE
(a) 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 of the claim; 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 prejudiced as
a result of such failure.
(b) In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be a
conflict 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 or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
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<PAGE> 13
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 all of
the indemnified parties who are parties to such action)
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.
7.3.4 CONTRIBUTION
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 this Section 7.3 in
respect to any losses, claims, damages, liabilities or expenses referred to in
this Agreement, 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 in this Agreement
(a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Purchaser from the placement of Common
Stock or
(b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) 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 respective 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
Registration Statement bears to the difference (the "Difference") between the
amount the Purchaser paid for the Shares that were sold pursuant to the
Registration Statement and the amount received by the Purchaser from such sale.
The relative fault of the Company and the Purchaser 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 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
Section 7.3.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in Section 7.3.3 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 Section 7.3.4; provided, however, that no additional
notice shall be required with respect to any threat or action for which notice
has been given under Section 7.3 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 or by
any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this Section 7.3, the Purchaser shall not be required to contribute 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 contribution from any person who was
not guilty of such fraudulent misrepresentation.
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<PAGE> 14
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS
The restrictions 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 Registration Statement covering the 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 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 Shareholders, within 120 days after the end of
each fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (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
Shareholders, its Annual Report on Form 10-K;
(iii) if not included in substance in its Quarterly Reports to
Shareholders, its quarterly reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement
covering the Shares (the foregoing, in each case,
excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of
copies of the Prospectus to supply to any other party requiring the Prospectus.
7.6 RULE 144 INFORMATION
For two years after the date of this Agreement, the Company shall file
all reports required to be filed by it under the Securities Act, the Rules and
Regulations and the Exchange Act and shall take such further action to the
extent required to enable the Purchaser to sell the Shares pursuant to Rule 144
under the Securities Act (as such rule may be amended from time to time).
8. BROKER'S FEE
The Purchaser acknowledges that the Company intends to pay Adams,
Harkness & Hill, Inc., the placement agent, a placement fee in respect of the
sale of the Shares to certain Purchasers. Each of the parties to this Agreement
hereby represents that, on the basis of any actions and agreements by it, there
are no brokers or finders entitled to compensation in connection with the sale
of the Shares to the Purchaser.
9. NOTICES
All notices, requests, consents and other communications under this
Agreement 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 delivered as addressed as follows:
(a) if to the Company, to: NeoRx Corporation
410 West Harrison Street
Seattle, WA 98119
(206) 281-7001
Attn: Richard L. Anderson
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<PAGE> 15
with a copy to: Perkins Coie LLP
1201 Third Avenue, 48th Floor
Seattle, Washington 98101
Attention: Faith M. Wilson
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 on the
signature page to this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight courier
or three days after deposit of such registered or certified airmail with the
U.S. Postal Service, as applicable.
10. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
11. TERMINATION
This Agreement may be terminated as to the Purchaser, at the option of
the Purchaser, if the Closing has not occurred on or before thirty (30) days
from the date of this Agreement.
12. EXPENSES
Each party to this Agreement shall pay its own fees and expenses
incident to the negotiation, preparation and execution of this Agreement and
related documents (including legal and accounting fees and expenses).
13. 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.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington and the federal law of the United States of
America.
16. 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 to this Agreement and delivered to
the other parties.
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
NEORX CORPORATION
By
-------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
PURCHASER:
By:
------------------------------------
Its:
-----------------------------------
Address
--------------------------------
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<PAGE> 17
NEORX CORPORATION
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of August 23, 2000, between NeoRx
Corporation, a Washington corporation (the "Company"), and the purchaser listed
on Schedule A attached hereto (the "Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the issuance and sale of up to 2,450,000 shares (the "Shares") of
common stock, par value $0.02 per share (the "Common Stock"), of the Company
(the "Offering").
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, the Purchaser
agrees to purchase, and the Company agrees to sell and issue to the Purchaser,
at the Closing (as defined below), that number of Shares set forth opposite the
Purchaser's name on Schedule A attached hereto.
2.2 PURCHASE PRICE
The purchase price of each Share (the "Per Share Price") shall be
$15.00.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing"), shall occur at the offices of Perkins Coie LLP, 1201 Third Avenue,
48th Floor, Seattle, Washington 98101, counsel to the Company, at 5:00 p.m. PDT
on August 25, 2000 or such other time and date as may be agreed by the parties.
(b) At the Closing, the Company shall authorize its transfer
agent (the "Transfer Agent") to issue 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
provided by Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 under the Securities Act. The Company will
deliver certificates representing the number of Shares set forth in Section 2
against delivery of payment for the Shares by the Purchaser via wire transfer to
the account designated in Schedule B.
(c) The Company's obligation to complete the purchase and sale of
the Shares shall be subject to the following conditions, any one or more of
which may be waived by the Company:
(i) receipt by the Company of same-day funds in the full
amount of the purchase price for the Shares being
purchased under this Agreement; and
(ii) the accuracy in all material respects of the
representations and warranties made by the Purchaser and
the fulfillment in all material respects of those
undertakings of the Purchaser to be fulfilled on or
before the Closing.
<PAGE> 18
(d) The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by
the Purchaser:
(i) the representations and warranties made by the Company
in this Agreement shall be accurate in all material
respects and the undertakings of the Company shall have
been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchaser a
certificate executed by the president and chief
operating officer or other executive 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 Section 4 hereof are true and correct in
all material respects as of the date of this Agreement
and as of the Closing Date, and that the Company has
complied with all the agreements and satisfied all the
conditions in this Agreement on its part to be performed
or satisfied on or before the Closing date; and
(iii) the Company shall have obtained aggregate gross proceeds
of at least $20 million from the Offering on the Closing
date.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Washington. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter into
and perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company.
4.2 CAPITALIZATION
(a) The authorized capital stock of the Company consists of
60,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock.
(b) As of July 21, 2000, the issued and outstanding capital stock
of the Company consists of 23,573,579 shares of Common Stock and the shares of
Series 1 convertible exchangeable preferred stock described in subsection (f)
below. The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
have not been issued in violation of or are not otherwise subject to any
preemptive or other similar rights.
(c) The Company has reserved an aggregate of 4,750,000 shares of
Common Stock for issuance upon the exercise of stock options granted or
available for future grant under the Company's 1994 Stock Option Plan and its
1991 Stock Option Plan for Non-Employee Directors, of which options to purchase
an aggregate of 3,392,474 shares of Common Stock have been granted and are
outstanding and an aggregate of 520,649 shares were available for grant at July
31, 2000.
(d) The Company has reserved 305,000 shares of Common Stock for
issuance upon the exercise of outstanding warrants to purchase Common Stock.
(e) The Company has reserved 250,000 shares of Common Stock for
issuance under its 1991 Restricted Stock Program, of which 190,250 remained
available for grant at July 31, 2000.
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<PAGE> 19
(f) 205,340 shares of Series 1 Convertible Preferred Stock of the
Company were convertible into 234,088 shares of the Common Stock as of July 31,
2000.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company, and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES
(a) The Shares have been duly authorized for issuance and sale to
the Purchaser pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Washington law.
(b) The issuance of the Shares is not subject to preemptive or
other similar rights. No further approval or authority of the shareholders 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 in this Agreement.
Except for shareholders who purchase Shares in the Offering, no shareholder of
the Company has any right (other than any right that has been waived following
notification of the Company's intent to file the Registration Statement (as
hereinafter defined) or has expired by reason of lapse of time) to require the
Company to register the sale of any securities owned by such holder in such
Registration Statement.
(c) Subject to the accuracy of the Purchaser's representations
and warranties in Section 5 of this Agreement, the offer, sale, and issuance of
the Shares in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act and from the registration or qualification requirements of the
laws of any applicable state or United States jurisdiction.
4.4 FINANCIAL STATEMENTS
The financial statements included in the Company Documents (as
hereinafter defined) present fairly the financial position of the Company as of
the dates indicated and the results of their operations for the periods
specified. Except as otherwise stated in such Company Documents, such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and any supporting schedules included
with the financial statements present fairly the information stated in the
financial statements. The financial and statistical data set forth in the
Company Documents were prepared on an accounting basis consistent with such
financial statements.
4.5 NO MATERIAL CHANGE
Since December 31, 1999,
(a) there has been no material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business;
(b) there have been no transactions entered into by the Company
other than those in the ordinary course of business, which are material with
respect to the Company; and
(c) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, except
for the approval by the Board of Directors of the payment of the Series 1
Preferred Stock dividend of $1.21875 per share, payable on June 1, 2000 for
shareholders of record on May 19, 2000.
The Company has no material contingent obligations.
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<PAGE> 20
4.6 ENVIRONMENTAL
Except as would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Company,
(a) the Company is in compliance with all applicable
Environmental Laws (as defined below);
(b) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals; and
(c) there are no pending or, to the best knowledge of the
Company, threatened Environmental Claims against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating to any Environmental Law.
4.7 NO DEFAULTS
The Company is not in violation of its articles of incorporation or
bylaws or in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or agreement to which the Company
is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject.
4.8 LABOR MATTERS
No labor dispute with the employees of the Company exists or, to the
best knowledge of the Company, is imminent.
4.9 NO ACTIONS
There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, would result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, or which, singly or in the aggregate, would
materially and adversely affect the properties or assets thereof or which would
materially and adversely affect the consummation of this Agreement, nor, to the
best knowledge of the Company, is there any reasonable basis therefor. The
Company is not in default with respect to any judgment, order or decree of any
court or governmental agency or instrumentality which, singly or in the
aggregate, would have a material adverse effect on the assets, properties or
business of the Company.
4.10 INTELLECTUAL PROPERTY
(a) The Company, to the best of its knowledge, owns or is
licensed to use all patents, patent applications, inventions, trademarks, trade
names, applications for registration of trademarks, service marks, service mark
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (in this Agreement called the
4
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"Proprietary Rights") that are material to the business of the Company as now
conducted and as proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company
has not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any Proprietary Rights or
with respect to any license of Proprietary Rights which are material to the
business of the Company.
(c) No action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, and has not entered into or is not a
party to any contract which restricts or impairs the use of any such Proprietary
Rights in a manner which would have a material adverse effect on the use of any
of the Proprietary Rights.
(e) No Proprietary Rights used by the Company, and no services or
products sold by the Company, conflict with or infringe upon any proprietary
rights of any third party. The Company has not received written notice of any
pending conflict with or infringement upon such third-party proprietary rights.
(f) The Company has not entered into any consent,
indemnification, forbearance to sue or settlement agreement with respect to
Proprietary Rights other than in the ordinary course of business. No claims have
been asserted by any person with respect to the validity of the Company's
ownership or right to use the Proprietary Rights and, to the best knowledge of
the Company, there is no reasonable basis for any such claim to be successful.
(g) The Proprietary Rights that are material to the business of
the Company are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or cancelled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
are in good standing.
(h) To the best of its knowledge, the Company has complied, in
all material respects, with its obligations relating to the protection of the
Proprietary Rights which are material to the business of the Company used
pursuant to licenses.
(i) To the best knowledge of the Company, no person is infringing
on or violating the Proprietary Rights.
4.11 PERMITS
The Company possesses and is operating in compliance with all material
licenses, certificates, consents, authorities, approvals and permits from all
state, Federal, foreign and other regulatory agencies or bodies necessary to
conduct the businesses now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any such
permit or any circumstance which would lead it to believe that such proceedings
are reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.12 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
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<PAGE> 22
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
4.13 PROPERTIES
The Company has good and marketable title to its properties, free and
clear of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real property held under lease by the Company is held
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company.
The Company owns or leases all such properties as are necessary to its business
or operations as now conducted.
4.14 COMPLIANCE
The Company has conducted and is conducting its business in compliance
with all applicable Federal, state, local and foreign statutes, laws, rules,
regulations, ordinances, codes, decisions, decrees, directives and orders,
except where the failure to do so would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the Company.
4.15 SECURITY MEASURES
The Company takes security measures designed to enable the Company to
assert trade secret protection in its non-patented technology.
4.16 CONTRIBUTIONS
To the best of the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation.
4.17 USE OF PROCEEDS; INVESTMENT COMPANY
The Company intends to use the net proceeds from the sale of the Shares
for research and development, pre-launch activities, general corporate purposes
and working capital. The Company is not now, and after the sale of the Shares
under this Agreement and under all other agreements and the application of the
net proceeds from the sale of the Shares described in the preceding sentence
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4.18 PRIOR OFFERINGS
All offers and sales of capital stock of the Company before the date of
this Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
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4.19 TAXES
The Company has filed all material tax returns required to be filed,
which returns are true and correct in all material respects, and the Company is
not in default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
4.20 OTHER GOVERNMENTAL PROCEEDINGS
To the Company's knowledge, there are no rulemaking or similar
proceedings before The United States Food and Drug Administration or comparable
Federal, state, local or foreign government bodies that involve or affect the
Company, which, if the subject of an action unfavorable to the Company, would
reasonably be expected to materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or business
prospects of the Company.
4.21 NON-COMPETITION AGREEMENTS
To the knowledge of the Company, any full-time employee who has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company is neither in violation of nor
is expected to be in violation of that agreement as a result of the business
currently conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 TRANSFER TAXES
On the Closing date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Shares to be sold to the Purchaser under this Agreement will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.23 INSURANCE
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering all real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 GOVERNMENTAL CONSENTS
No registration, authorization, approval, qualification or consent of
any court or governmental authority or agency is necessary in connection with
the execution and delivery of this Agreement or the offering, issuance or sale
of the Shares under this Agreement, except such as may be required under the
Securities Act or the rules and regulations promulgated thereunder or state
securities or Blue Sky laws, or such as may be required by the National
Association of Securities Dealers, Inc.
4.25 SECURITIES AND EXCHANGE COMMISSION FILINGS
The Company has timely filed with the Securities and Exchange Commission
(the "Commission") all documents required to be filed by the Company under the
Exchange Act of 1934, as amended (the "Exchange Act.")
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<PAGE> 24
4.26 ADDITIONAL INFORMATION
The Company represents and warrants that the information contained in
the following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000 and June 30, 2000;
(c) the Company's Proxy Statement for its 1999 Annual Meeting of
Shareholders; and
(d) all other documents, if any, filed by the Company with the
Commission since January 1, 2000 pursuant to the reporting requirements of the
Exchange Act.
4.27 CONTRACTS
The contracts described in the Company Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a material adverse effect on the business, properties or assets
of the Company. Neither the Company nor, to the best knowledge of the Company,
any other party is in breach of or default under any such contracts.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
5.1 SECURITIES LAW REPRESENTATIONS AND WARRANTIES
The Purchaser represents, warrants and covenants to the Company as
follows:
(a) 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.
(b) 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 (as defined for purposes of the Hart-Scott-Rodino Antitrust
Improvement Act of 1976 and the regulations thereunder) only, and has no present
intention of distributing any of the Shares nor any arrangement or understanding
with any other persons regarding the distribution of such Shares within the
meaning of Section 2(11) of the Securities Act, other than as contemplated in
Section 7 of this Agreement.
(c) 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.
(d) The Purchaser has completed or caused to be completed the
Stock Certificate Questionnaire and the Registration Statement Questionnaire,
attached to this Agreement as Appendices I and II, for use in preparation of the
Registration Statement (as defined in Section 7.3 below), and the answers to the
Questionnaires are true and correct as of the date of this Agreement and will be
true and correct as of the effective date of the Registration Statement;
provided that the Purchaser shall be entitled to update such information by
providing notice thereof to the Company before the effective date of such
Registration Statement.
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(e) The Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 2 above, relied solely upon
the Company Documents and the representations and warranties of the Company
contained in this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act.
5.2 RESALES OF SHARES
(a) The Purchaser hereby covenants with the Company not to make
any sale of the Shares without satisfying the requirements of the Securities Act
and the Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such Shares are
not transferable on the books of the Company pursuant to a resale under the
Registration Statement 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 III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been
satisfied.
(b) The Purchaser acknowledges that there may occasionally be
times when the Company determines the use of the prospectus forming a part of
the Registration Statement (the "Prospectus," as further defined in Section
7.3.1 below) should be suspended until such time as an amendment or supplement
to the Registration Statement or the Prospectus has been filed by the Company
and any such amendment to the Registration Statement is declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The Purchaser hereby
covenants that it will not sell any Shares pursuant to the Prospectus during the
period commencing at the time at which the Company gives the Purchaser written
notice of the suspension of the use of the Prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to the Prospectus. The Company may, upon written notice to
the Purchaser, suspend the use of the Prospectus for two 30-day periods in any
365-day period based on the reasonable determination of the Company's Board of
Directors that there is a significant business purpose for such determination,
such as pending corporate developments, public filings with the SEC or similar
events. The Company shall in no event be required to disclose the business
purpose for which it has suspended the use of the Prospectus if the Company
determines in its good faith judgment that the business purpose should remain
confidential.
(c) The Purchaser further covenants to notify the Company
promptly of the sale of any of its Shares.
5.3 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or 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
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it
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<PAGE> 26
or any of them may be bound, or to which any of the property or assets of the
Purchaser is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Purchaser or any applicable statute,
law, rule, regulation, ordinance, decision, directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Purchaser in this Agreement and in the certificates for the Shares
delivered pursuant to this Agreement shall survive the execution of this
Agreement, the delivery to the Purchaser of the Shares being purchased and the
payment therefor.
7. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT
7.1 REGISTRATION OF SHARES
7.1.1 REGISTRATION STATEMENT; EXPENSES
The Company shall use its best efforts to:
(a) as soon as practicable, but not more than 10 business days
after the Closing, prepare and file with the Commission a Registration Statement
on Form S-3 relating to the sale of the Shares by the Purchaser from time to
time on the Nasdaq National Market (or the facilities of any national securities
exchange on which the Company's Common Stock is then traded) or in privately
negotiated transactions (the "Registration Statement");
(b) subject to receipt of necessary information from the
Purchaser, cause the Commission to notify the Company of the Commission's
willingness to declare the Registration Statement effective within 90 days after
the Registration Statement is filed with the Commission;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus (as defined in
Section 7.3.1 below) and take such other action, if any, as may be necessary to
keep the Registration Statement effective until the earlier of (i) two years
after the effective date of the Registration Statement, (ii) the date on which
the Shares may be resold by the Purchaser without registration or without regard
to any volume limitations by reason of Rule 144 under the Securities Act or any
other rule of similar effect or (iii) all of the Shares have been sold pursuant
to the Registration Statement or Rule 144 under the Securities Act or any other
rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, in
order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchaser;
(e) during the period when copies of the Prospectus are required
to be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations promulgated thereunder;
(f) file documents required of the Company for customary Blue Sky
clearance in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (f) of this Section 7.1.1 and the registration of the
Shares pursuant to the Registration Statement, other than any fees and expenses
of counsel or other advisers to the Purchaser, brokerage fees and commissions
incurred by the Purchaser.
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The Purchaser acknowledges and agrees that the Registration Statement
filed under this Section, in addition to the Shares held by the Purchaser, shall
include Shares held by other purchasers in the Offering and, at the Company's
election, may include shares of Common Stock held by other Company shareholders
or issuable under any warrants, options or convertible securities.
7.1.2 DELAY IN EFFECTIVENESS OF REGISTRATION STATEMENT
In the event that the Registration Statement is not declared effective
within 104 days after the filing of the Registration Statement with the
Commission, the Company shall pay to the Purchaser liquidated damages in an
amount equal to 0.25% of the number of Shares purchased by the Purchaser
pursuant to this Agreement for each week thereafter that the Registration
Statement is not declared effective. Such liquidated damages shall be paid
through the issuance of additional Shares at such time as the Registration
Statement is declared effective. No liquidated damages shall be paid under this
Agreement if effectiveness of the Registration Statement is prevented or delayed
due to fire, explosion, flood, riot, labor dispute, accident, act of God, change
in existing regulation or law, or other similar event beyond the Company's
reasonable control.
7.2 TRANSFER OF SHARES AFTER REGISTRATION
The Purchaser agrees that it will not effect any disposition of the
Shares or its right to purchase the Shares that would constitute a sale within
the meaning of the Securities Act, except as contemplated in the Registration
Statement referred to in Section 7.1 or as otherwise permitted by law, and that
it will promptly notify the Company of any changes in the information set forth
in the Registration Statement regarding the Purchaser or its plan of
distribution.
7.3 INDEMNIFICATION
For the purpose of this Section 7.3, the term "Registration Statement"
shall include any preliminary or final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement referred to in
Section 7.1.
7.3.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Purchaser and each
person, if any, who controls the Purchaser within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses, joint or
several, to which the Purchaser or such 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 the Company, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations under this Agreement or
under law, and will reimburse the Purchaser and each such controlling person for
any legal and other expenses as such expenses are reasonably incurred by the
Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity
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with written information furnished to the Company by or on behalf of the
Purchaser expressly for use in the Registration Statement or the Prospectus, or
(ii) any untrue statement or omission of a material fact required to make such
statement not misleading in any Prospectus that is corrected in any subsequent
Prospectus that was delivered to the Purchaser before the pertinent sale or
sales by the Purchaser.
7.3.2 INDEMNIFICATION BY THE PURCHASER
The Purchaser will indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses to which the
Company, each of its directors, each of its officers who signed the Registration
Statement 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 the Purchaser, which consent
shall not be unreasonably withheld) 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 or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement to the Registration Statement or Prospectus, 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
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchaser expressly
for use therein, and the Purchaser will reimburse the Company, each of its
directors, each of its officers who signed the 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 Registration
Statement or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. Notwithstanding the foregoing, the Purchaser shall not be
liable for any indemnification obligation hereunder in excess of the net
proceeds received by such Purchaser in respect of the Shares.
7.3.3 INDEMNIFICATION PROCEDURE
(a) 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 of the claim; 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 prejudiced as
a result of such failure.
(b) In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be a
conflict 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 or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 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
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the case of paragraph (a), representing all of the
indemnified parties who are parties to such action) 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.
7.3.4 CONTRIBUTION
If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held by a court of competent
jurisdiction to be unavailable to hold harmless an indemnified party under this
Section 7.3 in respect to any losses, claims, damages, liabilities or expenses
referred to in this Agreement, 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 in this
Agreement in such proportion as is appropriate to reflect 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 fault of the Company and the Purchaser 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 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
Section 7.3.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in Section 7.3.3 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 Section 7.3.4; provided, however, that no additional
notice shall be required with respect to any threat or action for which notice
has been given under Section 7.3 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 or by
any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this Section 7.3, the Purchaser shall not be required to contribute any amount
in excess of the net proceeds received by the Purchaser in respect of the
Shares. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS
The restrictions 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 Registration Statement covering the 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 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 Shareholders, within 120 days after the end of
each fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (which Annual Report
shall contain financial statements audited in accordance
with generally accepted accounting principles by a
national firm of certified public accountants);
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(ii) if not included in substance in the Annual Report to
Shareholders, its Annual Report on Form 10-K;
(iii) if not included in substance in its Quarterly Reports to
Shareholders, its quarterly reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement
covering the Shares (the foregoing, in each case,
excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of
copies of the Prospectus to supply to any other party requiring the Prospectus.
7.6 RULE 144 INFORMATION
For two years after the date of this Agreement, the Company shall file
all reports required to be filed by it under the Securities Act, the Rules and
Regulations and the Exchange Act and shall take such further action to the
extent required to enable the Purchaser to sell the Shares pursuant to Rule 144
under the Securities Act (as such rule may be amended from time to time).
8. BROKER'S FEE
The Purchaser acknowledges that the Company intends to pay Adams,
Harkness & Hill, Inc., the placement agent, a placement fee in respect of the
sale of the Shares to certain Purchasers. Each of the parties to this Agreement
hereby represents that, on the basis of any actions and agreements by it, there
are no brokers or finders entitled to compensation in connection with the sale
of the Shares to the Purchaser.
9. NOTICES
All notices, requests, consents and other communications under this
Agreement 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 delivered as addressed as follows:
(a) if to the Company, to: NeoRx Corporation
410 West Harrison Street
Seattle, WA 98119
(206) 281-7001
Attn: Richard L. Anderson
with a copy to: Perkins Coie LLP
1201 Third Avenue, 48th
Floor
Seattle, Washington 98101
Attention: Faith M. Wilson
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 on the
signature page to this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight courier
or three days after deposit of such registered or certified airmail with the
U.S. Postal Service, as applicable.
10. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
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<PAGE> 31
11. TERMINATION
This Agreement may be terminated as to the Purchaser, at the option of
the Purchaser, if the Closing has not occurred on or before thirty (30) days
from the date of this Agreement.
12. EXPENSES
Each party to this Agreement shall pay its own fees and expenses
incident to the negotiation, preparation and execution of this Agreement and
related documents (including legal and accounting fees and expenses).
13. 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.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington and the federal law of the United States of
America.
16. 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 to this Agreement and delivered to
the other parties.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
NEORX CORPORATION
By
-------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
PURCHASER:
By:
------------------------------------
Its:
-----------------------------------
Address
--------------------------------
---------------------------------------
---------------------------------------
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NEORX CORPORATION
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of August 23, 2000, between NeoRx
Corporation, a Washington corporation (the "Company"), and the purchaser listed
on Schedule A attached hereto (the "Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the issuance and sale of up to 2,450,000 shares (the "Shares") of
common stock, par value $0.02 per share (the "Common Stock"), of the Company
(the "Offering").
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, the Purchaser
agrees to purchase, and the Company agrees to sell and issue to the Purchaser,
at the Closing (as defined below), that number of Shares set forth opposite the
Purchaser's name on Schedule A attached hereto.
2.2 PURCHASE PRICE
The purchase price of each Share (the "Per Share Price") shall be
$15.00.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing"), shall occur at the offices of Perkins Coie LLP, 1201 Third Avenue,
48th Floor, Seattle, Washington 98101, counsel to the Company, at 5:00 p.m. PDT
on August 25, 2000 or such other time and date as may be agreed by the parties.
(b) At the Closing, the Company shall authorize its transfer
agent (the "Transfer Agent") to issue 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
provided by Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 under the Securities Act. The Company will
deliver certificates representing the number of Shares set forth in Section 2
against delivery of payment for the Shares by the Purchaser via wire transfer to
the account designated in Schedule B.
(c) The Company's obligation to complete the purchase and sale of
the Shares shall be subject to the following conditions, any one or more of
which may be waived by the Company:
(i) receipt by the Company of same-day funds in the full
amount of the purchase price for the Shares being
purchased under this Agreement; and
(ii) the accuracy in all material respects of the
representations and warranties made by the Purchaser and
the fulfillment in all material respects of those
undertakings of the Purchaser to be fulfilled on or
before the Closing.
(d) The Purchaser's obligation to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by
the Purchaser:
<PAGE> 33
(i) the representations and warranties made by the Company
in this Agreement shall be accurate in all material
respects and the undertakings of the Company shall have
been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchaser a
certificate executed by the president and chief
operating officer or other executive 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 Section 4 hereof are true and correct in
all material respects as of the date of this Agreement
and as of the Closing Date, and that the Company has
complied with all the agreements and satisfied all the
conditions in this Agreement on its part to be performed
or satisfied on or before the Closing date; and
(iii) the Company shall have obtained aggregate gross proceeds
of at least $20 million from the Offering on the Closing
date.
(d) after the Closing, the Company shall use its reasonable
efforts to develop a procedure to permit the Purchaser to receive unlegended
certificates in a manner consistent with the federal and state securities laws.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Washington. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter into
and perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company.
4.2 CAPITALIZATION
(a) The authorized capital stock of the Company consists of
60,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock.
(b) As of July 21, 2000, the issued and outstanding capital stock
of the Company consists of 23,573,579 shares of Common Stock and the shares of
Series 1 convertible exchangeable preferred stock described in subsection (f)
below. The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
have not been issued in violation of or are not otherwise subject to any
preemptive or other similar rights.
(c) The Company has reserved an aggregate of 4,750,000 shares of
Common Stock for issuance upon the exercise of stock options granted or
available for future grant under the Company's 1994 Stock Option Plan and its
1991 Stock Option Plan for Non-Employee Directors, of which options to purchase
an aggregate of 3,392,474 shares of Common Stock have been granted and are
outstanding and an aggregate of 520,649 shares were available for grant at July
31, 2000.
(d) The Company has reserved 305,000 shares of Common Stock for
issuance upon the exercise of outstanding warrants to purchase Common Stock.
(e) The Company has reserved 250,000 shares of Common Stock for
issuance under its 1991 Restricted Stock Program, of which 190,250 remained
available for grant at July 31, 2000.
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(f) 205,340 shares of Series 1 Convertible Preferred Stock of the
Company were convertible into 234,088 shares of the Common Stock as of July 31,
2000.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company, and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES
(a) The Shares have been duly authorized for issuance and sale to
the Purchaser pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Washington law.
(b) The issuance of the Shares is not subject to preemptive or
other similar rights. No further approval or authority of the shareholders 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 in this Agreement.
Except for shareholders who purchase Shares in the Offering, no shareholder of
the Company has any right (other than any right that has been waived following
notification of the Company's intent to file the Registration Statement (as
hereinafter defined) or has expired by reason of lapse of time) to require the
Company to register the sale of any securities owned by such holder in such
Registration Statement.
(c) Subject to the accuracy of the Purchaser's representations
and warranties in Section 5 of this Agreement, the offer, sale, and issuance of
the Shares in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act and from the registration or qualification requirements of the
laws of any applicable state or United States jurisdiction.
4.4 FINANCIAL STATEMENTS
The financial statements included in the Company Documents (as
hereinafter defined) present fairly the financial position of the Company as of
the dates indicated and the results of their operations for the periods
specified. Except as otherwise stated in such Company Documents, such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and any supporting schedules included
with the financial statements present fairly the information stated in the
financial statements. The financial and statistical data set forth in the
Company Documents were prepared on an accounting basis consistent with such
financial statements.
4.5 NO MATERIAL CHANGE
Since December 31, 1999,
(a) there has been no material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business;
(b) there have been no transactions entered into by the Company
other than those in the ordinary course of business, which are material with
respect to the Company; and
(c) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, except
for the approval by the Board of Directors of the payment of the Series 1
Preferred Stock dividend of $1.21875 per share, payable on June 1, 2000 for
shareholders of record on May 19, 2000.
The Company has no material contingent obligations.
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<PAGE> 35
4.6 ENVIRONMENTAL
Except as would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Company,
(a) the Company is in compliance with all applicable
Environmental Laws (as defined below);
(b) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals; and
(c) there are no pending or, to the best knowledge of the
Company, threatened Environmental Claims against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating to any Environmental Law.
4.7 NO DEFAULTS
The Company is not in violation of its articles of incorporation or
bylaws or in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or agreement to which the Company
is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject.
4.8 LABOR MATTERS
No labor dispute with the employees of the Company exists or, to the
best knowledge of the Company, is imminent.
4.9 NO ACTIONS
There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, would result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, or which, singly or in the aggregate, would
materially and adversely affect the properties or assets thereof or which would
materially and adversely affect the consummation of this Agreement, nor, to the
best knowledge of the Company, is there any reasonable basis therefor. The
Company is not in default with respect to any judgment, order or decree of any
court or governmental agency or instrumentality which, singly or in the
aggregate, would have a material adverse effect on the assets, properties or
business of the Company.
4.10 INTELLECTUAL PROPERTY
(a) The Company, to the best of its knowledge, owns or is
licensed to use all patents, patent applications, inventions, trademarks, trade
names, applications for registration of trademarks, service marks, service mark
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (in this Agreement called the
4
<PAGE> 36
"Proprietary Rights") that are material to the business of the Company as now
conducted and as proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company
has not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any Proprietary Rights or
with respect to any license of Proprietary Rights which are material to the
business of the Company.
(c) No action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, and has not entered into or is not a
party to any contract which restricts or impairs the use of any such Proprietary
Rights in a manner which would have a material adverse effect on the use of any
of the Proprietary Rights.
(e) No Proprietary Rights used by the Company, and no services or
products sold by the Company, conflict with or infringe upon any proprietary
rights of any third party. The Company has not received written notice of any
pending conflict with or infringement upon such third-party proprietary rights.
(f) The Company has not entered into any consent,
indemnification, forbearance to sue or settlement agreement with respect to
Proprietary Rights other than in the ordinary course of business. No claims have
been asserted by any person with respect to the validity of the Company's
ownership or right to use the Proprietary Rights and, to the best knowledge of
the Company, there is no reasonable basis for any such claim to be successful.
(g) The Proprietary Rights that are material to the business of
the Company are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or cancelled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
are in good standing.
(h) To the best of its knowledge, the Company has complied, in
all material respects, with its obligations relating to the protection of the
Proprietary Rights which are material to the business of the Company used
pursuant to licenses.
(i) To the best knowledge of the Company, no person is infringing
on or violating the Proprietary Rights.
4.11 PERMITS
The Company possesses and is operating in compliance with all material
licenses, certificates, consents, authorities, approvals and permits from all
state, Federal, foreign and other regulatory agencies or bodies necessary to
conduct the businesses now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any such
permit or any circumstance which would lead it to believe that such proceedings
are reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.12 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
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<PAGE> 37
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor will such action result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
4.13 PROPERTIES
The Company has good and marketable title to its properties, free and
clear of all material security interests, mortgages, pledges, liens, charges,
encumbrances and claims of record. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses. Any real property held under lease by the Company is held
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company.
The Company owns or leases all such properties as are necessary to its business
or operations as now conducted.
4.14 COMPLIANCE
The Company has conducted and is conducting its business in compliance
with all applicable Federal, state, local and foreign statutes, laws, rules,
regulations, ordinances, codes, decisions, decrees, directives and orders,
except where the failure to do so would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the Company.
4.15 SECURITY MEASURES
The Company takes security measures designed to enable the Company to
assert trade secret protection in its non-patented technology.
4.16 CONTRIBUTIONS
To the best of the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation.
4.17 USE OF PROCEEDS; INVESTMENT COMPANY
The Company intends to use the net proceeds from the sale of the Shares
for research and development, pre-launch activities, general corporate purposes
and working capital. The Company is not now, and after the sale of the Shares
under this Agreement and under all other agreements and the application of the
net proceeds from the sale of the Shares described in the preceding sentence
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4.18 PRIOR OFFERINGS
All offers and sales of capital stock of the Company before the date of
this Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
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<PAGE> 38
4.19 TAXES
The Company has filed all material tax returns required to be filed,
which returns are true and correct in all material respects, and the Company is
not in default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
4.20 OTHER GOVERNMENTAL PROCEEDINGS
To the Company's knowledge, there are no rulemaking or similar
proceedings before The United States Food and Drug Administration or comparable
Federal, state, local or foreign government bodies that involve or affect the
Company, which, if the subject of an action unfavorable to the Company, would
reasonably be expected to materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or business
prospects of the Company.
4.21 NON-COMPETITION AGREEMENTS
To the knowledge of the Company, any full-time employee who has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company is neither in violation of nor
is expected to be in violation of that agreement as a result of the business
currently conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 TRANSFER TAXES
On the Closing date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Shares to be sold to the Purchaser under this Agreement will be,
or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.23 INSURANCE
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering all real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 GOVERNMENTAL CONSENTS
No registration, authorization, approval, qualification or consent of
any court or governmental authority or agency is necessary in connection with
the execution and delivery of this Agreement or the offering, issuance or sale
of the Shares under this Agreement, except such as may be required under the
Securities Act or the rules and regulations promulgated thereunder or state
securities or Blue Sky laws, or such as may be required by the National
Association of Securities Dealers, Inc.
4.25 SECURITIES AND EXCHANGE COMMISSION FILINGS
The Company has timely filed with the Securities and Exchange Commission
(the "Commission") all documents required to be filed by the Company under the
Exchange Act of 1934, as amended (the "Exchange Act.")
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<PAGE> 39
4.26 ADDITIONAL INFORMATION
The Company represents and warrants that the information contained in
the following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000 and June 30, 2000;
(c) the Company's Proxy Statement for its 1999 Annual Meeting of
Shareholders; and
(d) all other documents, if any, filed by the Company with the
Commission since January 1, 2000 pursuant to the reporting requirements of the
Exchange Act.
4.27 CONTRACTS
The contracts described in the Company Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a material adverse effect on the business, properties or assets
of the Company. Neither the Company nor, to the best knowledge of the Company,
any other party is in breach of or default under any such contracts.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
5.1 SECURITIES LAW REPRESENTATIONS AND WARRANTIES
The Purchaser represents, warrants and covenants to the Company as
follows:
(a) 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.
(b) 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 (as defined for purposes of the Hart-Scott-Rodino Antitrust
Improvement Act of 1976 and the regulations thereunder) only, and has no present
intention of distributing any of the Shares nor any arrangement or understanding
with any other persons regarding the distribution of such Shares within the
meaning of Section 2(11) of the Securities Act, other than as contemplated in
Section 7 of this Agreement.
(c) 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.
(d) The Purchaser has completed or caused to be completed the
Stock Certificate Questionnaire and the Registration Statement Questionnaire,
attached to this Agreement as Appendices I and II, for use in preparation of the
Registration Statement (as defined in Section 7.3 below), and the answers to the
Questionnaires are true and correct as of the date of this Agreement and will be
true and correct as of the effective date of the Registration Statement;
provided that the Purchaser shall be entitled to update such information by
providing notice thereof to the Company before the effective date of such
Registration Statement.
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(e) The Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 2 above, relied solely upon
the Company Documents and the representations and warranties of the Company
contained in this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning
of Rule 501 of Regulation D promulgated under the Securities Act.
5.2 RESALES OF SHARES
(a) The Purchaser hereby covenants with the Company not to make
any sale of the Shares without satisfying the requirements of the Securities Act
and the Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such Shares are
not transferable on the books of the Company pursuant to a resale under the
Registration Statement 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 III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been
satisfied.
(b) The Purchaser acknowledges that there may occasionally be
times when the Company determines the use of the prospectus forming a part of
the Registration Statement (the "Prospectus," as further defined in Section
7.3.1 below) should be suspended until such time as an amendment or supplement
to the Registration Statement or the Prospectus has been filed by the Company
and any such amendment to the Registration Statement is declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act. The Purchaser hereby
covenants that it will not sell any Shares pursuant to the Prospectus during the
period commencing at the time at which the Company gives the Purchaser written
notice of the suspension of the use of the Prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to the Prospectus. The Company may, upon written notice to
the Purchaser, suspend the use of the Prospectus for two 30-day periods in any
365-day period based on the reasonable determination of the Company's Board of
Directors that there is a significant business purpose for such determination,
such as pending corporate developments, public filings with the SEC or similar
events which may be required to be disclosed in the Prospectus. The Company
shall in no event be required to disclose the business purpose for which it has
suspended the use of the Prospectus if the Company determines in its good faith
judgment that the business purpose should remain confidential.
(c) The Purchaser further covenants to notify the Company
promptly of the sale of any of its Shares.
(d) The Company acknowledges and agrees that the Shares may be
transferred by the Purchaser to accredited entities affiliated with the
Purchaser.
5.3 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as rights
to indemnity and contribution under this Agreement may be limited by Federal or
state securities laws or the public policy underlying such laws.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been
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duly authorized by all necessary action and will not conflict with or constitute
a breach of, or 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 contract, indenture, mortgage, loan agreement, deed, trust,
note, lease, sublease, voting agreement, voting trust or other instrument or
agreement to which the Purchaser is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Purchaser is subject,
nor will such action result in any violation of the provisions of the charter or
bylaws of the Purchaser or any applicable statute, law, rule, regulation,
ordinance, decision, directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Purchaser in this Agreement and in the certificates for the Shares
delivered pursuant to this Agreement shall survive the execution of this
Agreement, the delivery to the Purchaser of the Shares being purchased and the
payment therefor.
7. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT
7.1 REGISTRATION OF SHARES
7.1.1 REGISTRATION STATEMENT; EXPENSES
The Company shall use its best efforts to:
(a) as soon as practicable, but not more than 10 business days
after the Closing, prepare and file with the Commission a Registration Statement
on Form S-3 relating to the sale of the Shares by the Purchaser from time to
time on the Nasdaq National Market (or the facilities of any national securities
exchange on which the Company's Common Stock is then traded) or in privately
negotiated transactions (the "Registration Statement");
(b) subject to receipt of necessary information from the
Purchaser, cause the Commission to notify the Company of the Commission's
willingness to declare the Registration Statement effective within 90 days after
the Registration Statement is filed with the Commission;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus (as defined in
Section 7.3.1 below) and take such other action, if any, as may be necessary to
keep the Registration Statement effective until the earlier of (i) two years
after the effective date of the Registration Statement, (ii) the date on which
the Shares may be resold by the Purchaser without registration or without regard
to any volume limitations by reason of Rule 144 under the Securities Act or any
other rule of similar effect or (iii) all of the Shares have been sold pursuant
to the Registration Statement or Rule 144 under the Securities Act or any other
rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, 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 the Prospectus 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 the Prospectus;
(e) during the period when copies of the Prospectus are required
to be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations promulgated thereunder;
(f) file documents required of the Company for customary Blue Sky
clearance in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do
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business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented;
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (f) of this Section 7.1.1 and the registration of the
Shares pursuant to the Registration Statement, other than any fees and expenses
of counsel or other advisers to the Purchaser, brokerage fees and commissions
incurred by the Purchaser; and
(h) promptly notify the Purchaser of the entry of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose.
7.1.2 DELAY IN EFFECTIVENESS OF REGISTRATION STATEMENT
In the event that the Registration Statement is not declared effective
within 90 days after the filing of the Registration Statement with the
Commission, the Company shall pay to the Purchaser liquidated damages in an
amount equal to 0.25% of the number of Shares purchased by the Purchaser
pursuant to this Agreement for each week thereafter that the Registration
Statement is not declared effective. Such liquidated damages shall be paid
through the issuance of additional Shares at such time as the Registration
Statement is declared effective. No liquidated damages shall be paid under this
Agreement if effectiveness of the Registration Statement is prevented or delayed
due to fire, explosion, flood, riot, labor dispute, accident, act of God, change
in existing regulation or law, or other similar event beyond the Company's
reasonable control.
7.2 TRANSFER OF SHARES AFTER REGISTRATION
The Purchaser agrees that it will not effect any disposition of the
Shares or its right to purchase the Shares that would constitute a sale within
the meaning of the Securities Act, except as contemplated in the Registration
Statement referred to in Section 7.1 or as otherwise permitted by law. The
Company acknowledges and agrees that the Purchaser may transfer the Shares to
accredited entities affiliated with the Purchaser. The Purchaser shall promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding the Purchaser or its plan of distribution.
7.3 INDEMNIFICATION
For the purpose of this Section 7.3, the term "Registration Statement"
shall include any preliminary or final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement referred to in
Section 7.1.
7.3.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Purchaser and its
officers, directors and employees and each person who controls the Purchaser
within the meaning of the Securities Act (the "Purchaser Indemnified Party"),
against any losses, claims, damages, liabilities or expenses, joint or several,
to which the Purchaser or such Purchaser Indemnified Party 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, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company
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<PAGE> 43
contained in this Agreement, or any failure of the Company to perform its
obligations under this Agreement or under law, and will reimburse the Purchaser
and each such Purchaser Indemnified Party for any legal and other expenses as
such expenses are reasonably incurred by the Purchaser or such Purchaser
Indemnified Party in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, liability or expense arises out
of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the Prospectus
or any amendment or supplement of the Registration Statement or Prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Purchaser expressly for use in the Registration
Statement or the Prospectus, or (ii) the failure of the Purchaser to comply with
the covenants and agreements contained in Sections 5.2 or 7.2 of this Agreement
respecting resale of the Shares, or (iii) the inaccuracy of any representations
made by the Purchaser in this Agreement or (iv) any untrue statement or omission
of a material fact required to make such statement not misleading in any
Prospectus that is corrected in any subsequent Prospectus that was delivered to
the Purchaser before the pertinent sale or sales by the Purchaser.
7.3.2 INDEMNIFICATION BY THE PURCHASER
The Purchaser will indemnify and hold harmless the Company, each of its
directors, officers and employees and each person who controls the Company
within the meaning of the Securities Act (the "Company Indemnified Party"),
against any losses, claims, damages, liabilities or expenses to which the
Company or such Company Indemnified Party 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
Purchaser, which consent shall not be unreasonably withheld) 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 5.2 or 7.2 of this
Agreement respecting the sale of the Shares or (ii) the inaccuracy of any
representation made by the Purchaser in this Agreement or (iii) any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement to the Registration
Statement or Prospectus, 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 therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Purchaser expressly for use therein, and the Purchaser will
reimburse the Company or the Company Indemnified Party for any legal and other
expense reasonably incurred by the Company or the Company Indemnified Party in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action.
7.3.3 INDEMNIFICATION PROCEDURE
(a) 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 of the claim; 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 prejudiced as
a result of such failure.
(b) In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be a
conflict 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 or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such
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<PAGE> 44
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 all of
the indemnified parties who are parties to such action)
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.
7.3.4 CONTRIBUTION
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 this Section 7.3 in
respect to any losses, claims, damages, liabilities or expenses referred to in
this Agreement, 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 in this Agreement
(a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Purchaser from the placement of Common
Stock or
(b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) 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 respective 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
Registration Statement bears to the difference (the "Difference") between the
amount the Purchaser paid for the Shares that were sold pursuant to the
Registration Statement and the amount received by the Purchaser from such sale.
The relative fault of the Company and the Purchaser 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 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
Section 7.3.3, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in Section 7.3.3 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 Section 7.3.4; provided, however, that no additional
notice shall be required with respect to any threat or action for which notice
has been given under Section 7.3 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 or by
any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this Section 7.3, the Purchaser shall not be required to contribute 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
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guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS
The restrictions 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 acquisition of the
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 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 Shareholders, within 120 days after the end of
each fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (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
Shareholders, its Annual Report on Form 10-K;
(iii) if not included in substance in its Quarterly Reports to
Shareholders, its quarterly reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement
covering the Shares (the foregoing, in each case,
excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of
copies of the Prospectus to supply to any other party requiring the Prospectus.
7.6 RULE 144 INFORMATION
For two years after the date of this Agreement, the Company shall file
all reports required to be filed by it under the Securities Act, the Rules and
Regulations and the Exchange Act and shall take such further action to the
extent required to enable the Purchaser to sell the Shares pursuant to Rule 144
under the Securities Act (as such rule may be amended from time to time).
8. BROKER'S FEE
The Purchaser acknowledges that the Company intends to pay Adams,
Harkness & Hill, Inc., the placement agent, a placement fee in respect of the
sale of the Shares to certain Purchasers. Each of the parties to this Agreement
hereby represents that, on the basis of any actions and agreements by it, there
are no brokers or finders entitled to compensation in connection with the sale
of the Shares to the Purchaser.
9. NOTICES
All notices, requests, consents and other communications under this
Agreement 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 delivered as addressed as follows:
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(a) if to the Company, to: NeoRx Corporation
410 West Harrison Street
Seattle, WA 98119
(206) 281-7001
Attn: Richard L. Anderson
with a copy to: Perkins Coie LLP
1201 Third Avenue, 48th Floor
Seattle, Washington 98101
Attention: Faith M. Wilson
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 on the
signature page to this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing, with copy
to:___________________________________________________________.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight courier
or three days after deposit of such registered or certified airmail with the
U.S. Postal Service, as applicable.
10. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
11. TERMINATION
This Agreement may be terminated as to the Purchaser, at the option of
the Purchaser, if the Closing has not occurred on or before thirty (30) days
from the date of this Agreement.
12. EXPENSES
Each party to this Agreement shall pay its own fees and expenses
incident to the negotiation, preparation and execution of this Agreement and
related documents (including legal and accounting fees and expenses).
13. 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.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington and the federal law of the United States of
America.
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16. 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 to this Agreement and delivered to
the other parties.
17. SPECIFIC PERFORMANCE
In addition to any other remedy to which they are entitled at law or in
equity, the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof. The Company acknowledges that this right shall be in addition
to any remedy pursuant to Section 7.1.2 of this Agreement.
18. DISCLOSURE
The information contained in this Agreement , in the Company documents
referenced in Section 4.26 above and in any writing furnished pursuant hereto or
in connection herewith, taken as a whole, is true, complete and correct, and
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or herein or necessary to make the
statements therein or herein, in light of the circumstances under which they
were made, not misleading.
19. OTHER REGISTRATION RIGHTS
From the date of the Closing until such time as the Registration
Statement is declared effective, the Company will not grant to any person the
right to request to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such securities,
which right is superior in priority to the rights granted to the Purchaser
hereunder, without the prior written consent of the Purchaser, which consent
shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
NEORX CORPORATION
By
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Name:
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Its:
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PURCHASER:
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By:
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Its:
-----------------------------------
Address
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