Exhibit 10.36
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 3rd day of February 2000, by and between
NPS Pharmaceuticals Inc. (the "Company"), a corporation organized under the laws
of the State of Delaware, with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, and the purchaser whose name and address is set forth on
the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company has authorized the sale of up to
4,000,000 shares (the "Shares") of common stock, par value US$0.001 per share
(the "Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
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defined in Section 3), the Company will sell to the Purchaser, and the Purchaser
will buy from the Company, upon the terms and conditions hereinafter set forth,
the number of Shares (at the purchase price) shown below:
Number to Be Price Per Share Aggregate Purchase Price
Purchased In U.S. Dollars in U.S. Dollars
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The Company proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Purchasers") and expects to complete
sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean Prudential Vector Healthcare Group, a unit of Prudential
Securities Incorporated.
SECTION 3. Delivery of the Shares at the Closing. The completion of the
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purchase and sale of the Shares (the "Closing") shall occur as soon as
practicable and as agreed by the parties hereto following notification by the
staff of the U.S. Securities and Exchange Commission (the "Commission") to the
Company of the staff's willingness to declare effective the registration
statement to be filed by the Company pursuant to Section 7.1 hereof (the
"Registration Statement") at a place and time (the "Closing Date") to be agreed
upon by the Company and the Placement Agent and of which the Purchasers will be
notified by facsimile transmission or otherwise.
At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as may be designated by the Purchaser in writing, representing the
number of Shares set forth in Section 2 above and bearing an appropriate legend
referring to the fact that the Shares were sold in reliance upon the exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act") provided by Section 4(2) thereof and Rule 506 thereunder. The Company
will promptly substitute one or more replacement certificates without the legend
at such time as the Registration State-
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ment becomes effective. The name(s) in which the stock certificates are to be
registered are set forth in the Stock Certificate Questionnaire attached hereto
as part of Appendix I. The Company's obligation to complete the purchase and
sale of the Shares and deliver such stock certificate(s) to the Purchaser at the
Closing shall be subject to the following conditions, any one or more of which
may be waived by the Company: (a) receipt by the Company of same-day funds in
the full amount of the purchase price for the Shares being purchased hereunder;
(b) completion of the purchases and sales under the Agreements with all of the
Other Purchasers; and (c) the accuracy of the representations and warranties
made by the Purchasers and the fulfillment of those undertakings of the
Purchasers to be fulfilled prior to the Closing. The Purchaser's obligation to
accept delivery of such stock certificate(s) and to pay for the Shares evidenced
thereby shall be subject to the following conditions: (a) the staff of the
Commission having notified the Company of the staff's willingness to declare the
Registration Statement effective on or prior to the 75th day after the date the
Registration Statement was filed by the Company; and (b) the accuracy in all
material respects of the representations and warranties made by the Company
herein and the fulfillment in all material respects of those undertakings of the
Company to be fulfilled prior to Closing, including the Company's undertaking to
prepare and file the Registration Statement pursuant to Section 7.1(a) hereof.
The Purchaser's obligations hereunder are expressly not conditioned on the
purchase by any or all of the Other Purchasers of the Shares that they have
agreed to purchase from the Company.
SECTION 4. Representations, Warranties and Covenants of the Company. The
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Company hereby represents and warrants to, and covenants with, the Purchaser, as
of the date hereof and as of the Closing, as follows:
4.1 Organization and Qualification. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware. NPS Holdings Company, a wholly owned subsidiary of the Company, is an
unlimited liability company existing under the laws of the Province of Nova
Scotia, and is validly existing and in good standing under the laws of Nova
Scotia. NPS Allelix Inc., a direct wholly-owned subsidiary of NPS Holdings, is
a company limited by shares, existing under the laws of the Province of Nova
Scotia, and is validly existing and in good standing under the laws of Nova
Scotia. NPS Allelix Corp. is a majority owned subsidiary of NPS Allelix Inc.,
existing under the laws of the Province of Ontario, and is validly existing and
in good standing under the laws of Ontario. Allelix Neuroscience, Inc. is a
wholly owned subsidiary of NPS Allelix Corp., existing under the laws of the
State of New Jersey, and is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey. The Company has no
subsidiaries (as defined in the Securities Act) other than NPS Holdings Company,
NPS Allelix Inc., NPS Allelix Corp, and Allelix Neuroscience Inc. (collectively
referred to herein as the "Subsidiaries"). The Company and each of its
Subsidiaries has the power and authority, corporate or otherwise, as
appropriate, to own, lease and operate its properties and to conduct its
business as described in the Confidential Private Placement Memorandum, dated
January 27, 2000 prepared by the Company, including all Exhibits, supplements
and amendments thereto and documents expressly incorporated by reference in any
Exhibits (the "Private Placement Memorandum") and to enter into and perform its
obligations under this Agreement; and the Company and each of its Subsidiaries
is duly qualified as a foreign corporation or other appropriate entity 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 individually or in the aggregate have a material adverse effect on the
condition (fi-
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nancial or otherwise), earnings, properties, business, prospects or results of
operations of the Company and the Subsidiaries (a "Material Adverse Effect").
4.2 Authorized Capital Stock. The Company had authorized and outstanding
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capital stock as set forth under the heading "Capitalization" in the Private
Placement Memorandum as of the date set forth therein; the issued and
outstanding shares of the Company's Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued in compliance
with all U.S. federal and state securities laws, were not issued in violation of
or are not otherwise subject to any preemptive or other similar rights or other
rights to subscribe for or purchase securities, and conform in all material
respects to the description thereof contained in the Private Placement
Memorandum. Except as disclosed in the Private Placement Memorandum and options
issued under the Company's stock plans after January 27, 2000, the Company does
not have outstanding any options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any shares of capital stock of any subsidiary and
there is no commitment, plan or arrangement to issue any securities or
obligations convertible into any shares of capital stock of the Company or its
Subsidiaries or any such options, rights, convertible securities or obligations.
The description of the Company's capital stock, stock bonus and other stock
plans or arrangements and the options or other rights granted and exercised
thereunder, contained in the Private Placement Memorandum accurately and fairly
presents the information required to be shown with respect to such capital
stock, plans, arrangements, options and rights.
4.3 Issuance, Sale and Delivery of the Shares. The Shares have been duly
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authorized and, when issued, delivered and paid for in the manner set forth in
this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will conform in all material respects to the description
thereof set forth in the Private Placement Memorandum. The issued shares of
capital stock of each of the Company's Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and are owned by the
Company free and clear of any perfected security interest, or any other security
interests, liens, encumbrances, equities or claims. No preemptive rights or
other rights to subscribe for or purchase exist with respect to the issuance and
sale of the Shares by the Company pursuant to this Agreement. Except for rights
disclosed in the Private Placement Memorandum, no stockholder of the Company has
any right (which has not been waived or has not expired by reason of lapse of
time following notification of the Company's intent to file the Registration
Statement) to request or require the Company to register the sale of any shares
owned by such stockholder under the United States Securities Act in the
Registration Statement. No further approval or authority of the stockholders or
the Board of Directors of the Company will be required for the issuance and sale
of the Shares to be sold by the Company as contemplated herein.
4.4 Due Execution, Delivery and Performance of the Agreements. The
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Company has full legal right, corporate power and authority to enter into the
Agreements and perform the transactions contemplated hereby and thereby. The
Agreements have been duly authorized, executed and delivered by the Company.
The execution, delivery and performance of the Agreements by the Company and the
consummation of the transactions herein and therein contemplated will not
violate any provision of the organizational documents of the Company or any of
its Subsidiaries and will not result in the creation of any lien, charge,
security interest or encumbrance upon any assets or property of the Company or
any of its Subsidiaries pursuant to the
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terms or provisions of, or will not conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage of
time or both, a default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective assets or properties may be bound or
affected or, to the Company's knowledge, any statute or any authorization,
judgment, decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
any of its Subsidiaries or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the execution,
delivery and performance of the Agreements or the consummation of the
transactions contemplated hereby or thereby, except for compliance with the Blue
Sky laws and U.S. federal securities laws applicable to the offering of the
Shares. Upon their execution and delivery, and assuming the valid execution
thereof by the respective Purchasers, the Agreements will constitute legal,
valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Company in Section 7.3 hereof may be legally
unenforceable.
4.5 Accountants. KPMG LLP have expressed their opinion with respect to
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the audited consolidated financial statements to be incorporated by reference
into the Registration Statement and the Prospectus which forms a part thereof
from the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998, and are independent accountants as required by the Securities Act and
the rules and regulations promulgated thereunder (the "Rules and Regulations").
The financial statements consisting of the Allelix and NPS Unaudited Pro Forma
Condensed Consolidated Financial Statements and the Allelix Audited Consolidated
Financial Statements for the year ended August 31, 1999 (including all notes and
schedules thereto) included in the Private Placement Memorandum present fairly
the financial position, the results of operations, the statements of cash flows
and the statements of stockholders' equity and the other information purported
to be shown therein of the Company and its Subsidiaries at the respective dates
and for the respective periods to which they apply and such consolidated
financial statements have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods involved.
4.6 No Defaults. Neither the Company nor any of its Subsidiaries is (i)
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in violation or default of any provision of its certificate of incorporation,
bylaws or other organizational documents, or (ii) in breach of or default with
respect to any provision of any agreement, judgment, decree, order, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which it is a party or by which it or any of its assets or properties are
bound, except for violations, breaches and defaults which individually or in the
aggregate would not have a Material Adverse Effect; and there does not exist any
state of fact which, with notice or lapse of time or both, would constitute an
event of default on the part of the Company or any of its Subsidiaries as
defined in such documents, except such defaults which individually or in the
aggregate would not have a Material Adverse Effect.
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4.7 Contracts. The contracts described in the Private Placement
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Memorandum as being in effect on the date hereof that are material to the
Company, are in full force and effect on the date hereof, and neither the
Company nor any of its Subsidiaries, nor to the Company's knowledge, is any
other party in breach of or default under any of such contracts which would have
a Material Adverse Effect.
4.8 No Actions. There are no legal or governmental actions, suits or
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proceedings pending or, to the Company's knowledge, threatened to which the
Company or any of its Subsidiaries are or may be a party or of which property
owned or leased by the Company or any of its Subsidiaries are or may be the
subject, or related to environmental or discrimination matters, which actions,
suits or proceedings, individually or in the aggregate, might prevent or might
reasonably be expected to materially and adversely affect the transactions
contemplated by this Agreement or result in a material adverse change in the
condition (financial or otherwise), properties, business, prospects or results
of the operations of the Company and its Subsidiaries, taken as a whole (a
"Material Adverse Change"); and no labor disturbance by the employees of the
Company or any of its Subsidiaries exists or, to the Company's knowledge, is
imminent which might reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the Private Placement Memorandum, neither the Company nor
any of its Subsidiaries is a party to or subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory body
administrative agency or other governmental body.
4.9 Properties. Each of the Company and its Subsidiaries has good and
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marketable title to all the properties and assets required for the continued
conduct of its business as described in the Private Placement Memorandum,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
(i) those, if any, reflected in the Financial Statements (including the notes
thereto), or (ii) those which are not material in amount and do not materially
and adversely affect the use made and intended to be made of such property by
the Company or its Subsidiaries. Each of the Company and its Subsidiaries holds
its leased properties under valid and binding leases, with such exceptions as
are not materially significant in relation to the business of the Company and
its Subsidiaries, taken as a whole. Except as disclosed in the Private
Placement Memorandum, each of the Company and its Subsidiaries owns or leases
all such properties as are necessary to its operations as now conducted.
4.10 No Material Change. Since September 30, 1999 (i) neither the Company
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nor its Subsidiaries have incurred any liabilities or obligations, indirect, or
contingent, or entered into any verbal or written agreement or other transaction
which is not in the ordinary course of business or which could reasonably be
expected to result in a material reduction in the future earnings of the Company
or its Subsidiaries or in a Material Adverse Effect; (ii) neither the Company
nor its Subsidiaries have sustained any material loss or interference with its
businesses or properties from fire, flood, windstorm, accident or other calamity
not covered by insurance; (iii) neither the Company nor its Subsidiaries have
paid or declared any dividends or other distributions with respect to its
capital stock and neither the Company nor its Subsidiaries is in default in the
payment of principal or interest on any outstanding debt obligations; (iv) there
has not been any change in the capital stock of the Company or any of its
Subsidiaries other than the issuance of capital stock in connection with the
acquisition of Allelix Biopharmaceuticals Inc., the sale of the Shares hereunder
and shares or options issued pursuant to exercise of outstanding warrants or
employee and director stock option plans approved by the Company's or such
Subsidiaries' Board of Directors, as the case may be, or indebtedness material
to the Company or any of its
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Subsidiaries (other than in the ordinary course of business); and (v) there has
not been a change that would result in a Material Adverse Change.
4.11 Intellectual Property. Except as otherwise specifically disclosed in
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the Private Placement Memorandum, (i) the Company and its Subsidiaries own or
have obtained valid licenses, options or rights to use for the material
inventions, patent applications, patents, trademarks (both registered and
unregistered), trade names, copyrights and trade secrets necessary for the
conduct of the Company's and its Subsidiaries' respective businesses as
currently conducted and as the Private Placement Memorandum indicates the
Company and its Subsidiaries contemplate conducting in all material respects
(collectively, the "Intellectual Property"); (ii) neither the Company nor any of
its Subsidiaries has received notice of any third parties who have any ownership
rights to any Intellectual Property that is owned by, or has been licensed to,
the Company or its Subsidiaries for the product indications described in the
Private Placement Memorandum that would preclude the Company or its Subsidiaries
from conducting their respective businesses as currently conducted and as the
Private Placement Memorandum indicates the Company and its Subsidiaries
contemplate conducting in all material respects; (iii) to the Company's
knowledge there are currently no sales of any products that would constitute an
infringement by third parties of any material Intellectual Property owned,
licensed or optioned by the Company or its Subsidiaries; (iv) there is no
pending or, to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the rights of the Company or its Subsidiaries in or
to any material Intellectual Property owned, licensed or optioned by the Company
or its Subsidiaries; (v) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others challenging the validity
or scope of any material Intellectual Property owned, licensed or optioned by
the Company or its Subsidiaries; and (vi) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company or its Subsidiaries infringe or otherwise violate any patent,
trademark, copyright, trade secret or other proprietary right of others as would
reasonably be expected to result in a Material Adverse Effect.
4.12 Compliance. Neither the Company nor any of its Subsidiaries has been
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advised, and has no reason to believe, that it is not conducting its business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not individually or in the aggregate
have a Material Adverse Effect.
4.13 Taxes. Each of the Company and its Subsidiaries has filed or obtained
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filing extensions with respect to all federal, state, provinical, local and
foreign income and franchise tax returns material to the Company and the
Subsidiaries, and has paid or accrued all taxes shown as due thereon, and
neither the Company nor any of its Subsidiaries has knowledge of a tax
deficiency which has been or might be asserted or threatened against it which
would reasonably be expected to have a Material Adverse Effect.
4.14 Transfer Taxes. On the Closing Date, all stock transfer or other
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taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold to the Purchaser hereunder will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
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4.15 Insurance. Each of the Company and its Subsidiaries maintains
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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 or its Subsidiaries
against risks customarily insured against by similarly situated companies, all
of which insurance is in full force and effect.
4.16 Contributions. Neither the Company at any time since its
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incorporation nor its Subsidiaries at any time since they were acquired or
formed by the Company have, directly or indirectly, (i) made any unlawful
contribution to any candidate for public office, or failed to disclose fully
where required by law any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
4.17 Investment Company. The Company is not an "investment company" or an
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"affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the United States Investment Company
Act of 1940, as amended.
4.18 Offering Materials. The Company has not distributed and will not
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distribute prior to the Closing Date any offering material in connection with
the offering and sale of the Shares other than the Private Placement Memorandum
or any amendment or supplement thereto. The Company has not nor will it take
any action independent of the Placement Agent to sell, offer for sale or solicit
offers to buy any securities of the Company which would bring the offer,
issuance or sale of the Shares, as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act.
4.19 Related Party Transactions. No transaction has occurred between or
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among the Company and its affiliates, officers or directors or any affiliate or
affiliates of any such officer or director that is required to be described in
the Company's reports and other filings under the United States Securities
Exchange Act of 1934 (the "Exchange Act") attached as Exhibits to the Private
Placement Memorandum that is not so described.
4.20 Books and Records. The books, records and accounts of the Company
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accurately and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company,
all to the extent required by generally accepted accounting principles. The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in accordance with
generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
4.21 Additional Information. The Company represents and warrants that each
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of the following documents, which the Placement Agent has furnished to the
Purchaser, or will furnish prior to the Closing, as of its date (or date of
filing with the Commission, as applicable), does not or will not contain an
untrue statement of a material fact or omit or will omit to state a material
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fact necessary in order to make the statements therein, in the light of the
circumstances under which they were or will be made, not misleading:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) the Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1999, June 30, 1999 and September 30, 1999;
(c) the Company's Proxy Statement dated April 21, 1999 for the 1999 Annual
Meeting of Stockholders;
(d) the Company's Proxy Statement dated November 17, 1999 for the special
Meeting of Stockholders related to the acquisition by NPS of Allelix
Biopharmaceuticals Inc.;
(e) the Company's current reports on Form 8-K filed with the Commission on
October 1, 1999, November 12, 1999, November 18, 1999 and January 10,
2000;
(f) the Resale Registration Statement on Form S-3;
(g) the Private Placement Memorandum, including all addenda and exhibits
thereto (other than the Appendices); and
(h) all other documents, if any, filed by the Company with the Securities
and Exchange Commission since January 27, 2000, pursuant to the
reporting requirements of the Exchange Act.
4.23 Legal Opinions. Prior to the Closing and as a condition to the
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Purchaser's obligation hereunder, counsel to the Company will deliver to the
Placement Agent said counsel's legal opinion concerning the issuance of the
Shares in form and substance as agreed with the Placement Agent. The opinion
shall also state that each of the Purchasers may rely thereon as though it were
addressed directly to such Purchaser.
4.24 Certificate. At the Closing, the Company will deliver to the
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Purchaser a certificate executed by the Chairman of the Board or President and
the chief financial or accounting officer of the Company, dated the Closing
Date, in form and substance reasonably satisfactory to the Purchasers, to the
effect that the representations and warranties of the Company set forth in this
Section 4 are true and correct in all material respects as of the date of this
Agreement and as of the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions herein on its part to be performed
or satisfied on or prior to such Closing Date.
4.25 Year 2000 Compliance. The Company has not experienced, nor does the
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Company have reason to believe that one will arise, a Year 2000 Problem that
would have a Material Adverse Effect on the Company. The "Year 2000 Problem" as
used herein means any significant risk that computer hardware or software used
in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time periods
occurring after
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December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser represents and warrants to, and covenants with, the
Company that: (i) the Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with
respect to investments in shares representing an investment decision
like that involved in the purchase of the Shares, including
investments in securities issued by the Company, and has requested,
received, reviewed and considered all information it deems relevant in
making an informed decision to purchase the Shares; (ii) the Purchaser
is acquiring the number of Shares set forth in Section 2 above in the
ordinary course of its business and for its own account for investment
(as defined for purposes of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvement Act of 1976 and the regulations thereunder) only and with
no present intention of distributing any of such Shares or any
arrangement or understanding with any other persons regarding the
distribution of such Shares within the meaning of Section 2(11) of the
Securities Act; (iii) the Purchaser will not directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of) any
of the Shares except in compliance with the Securities Act and the
Rules and Regulations thereunder; (iv) the Purchaser has completed or
caused to be completed the Registration Statement Questionnaire and
the Stock Certificate Questionnaire, both attached hereto as Appendix
I, for use in preparation of the Registration Statement, and the
answers thereto are true and correct as of the date hereof and will be
true and correct as of the effective date of the Registration
Statement; (v) the Purchaser has, in connection with its decision to
purchase the number of Shares set forth in Section 2 above, relied
solely upon the Private Placement Memorandum and the documents
included therein and the representations and warranties of the Company
contained herein and not on any other information concerning the
Company or the offering; (vi) the Purchaser is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
(b) The Purchaser hereby covenants with the Company not to make any sale
of the Shares under the Registration Statement without effectively
causing the prospectus delivery requirement under the Securities Act,
and the Purchaser acknowledges and agrees that such Shares are not
transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Shares is accompanied
by a separate officer's certificate: (i) in the form of Appendix II
hereto, (ii) executed by an officer of, or other authorized person
designated by, the Purchaser, and (iii) to the effect that (A) the
Shares have been sold in accordance with the Registration Statement,
the Securities Act and the Rules and Regulations and any applicable
state securities or blue sky laws and (B) the requirement of
delivering a current prospectus has been satisfied. The Purchaser
acknowledges that there may occasionally be times when the Company
must suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment or supplement
to the Registration Statement or the Prospectus has
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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 said prospectus during the period
commencing at the time at which the Company gives the Purchaser
written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that
the Purchaser may thereafter effect sales pursuant to said prospectus.
The Purchaser further covenants to notify the Company promptly of the
sale of all of its Shares.
(c) The Purchaser further represents and warrants to, and covenants with,
the Company that (i) the Purchaser has full right, power, authority
and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action,
obtained all necessary consents and has satisfied or will satisfy all
notification and filing requirements necessary to authorize the
execution, delivery and performance of this Agreement by the
Purchaser, and (ii) upon the execution and delivery of this Agreement,
this Agreement shall constitute a legal, valid and binding obligation
of the Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Purchaser in Section 7.3 hereof may
be legally unenforceable.
(d) If the Purchaser is resident in Canada, then such Purchaser hereby
represents and warrants, together with the other representations and
warranties herein, to the Company and every agent who is receiving a
commission in respect of the sale of Shares to such Purchaser and any
ultimate purchaser for whom such Purchaser is acting as agent:
(A) is resident in the Province of Ontario, Quebec or British
Columbia (collectively, the "Private Placement Provinces");
(B) is entitled under applicable provincial securities laws to
purchase Shares without the benefit of a prospectus qualified
under the securities laws of the relevant Private Placement
Province and, in the case of Private Placement Province other
than Ontario, without the services of a dealer registered
pursuant to such securities laws;
(C) has reviewed the terms referred to in the Private Placement
Memorandum under the heading "Resale Restrictions", and
understands that the Shares have not been qualified for
distribution to the public in any province or territory of
Canada, and that any resale of the Shares must be made (i)
through an appropriately registered dealer or in accordance with
an exemption from the registration requirements of applicable
securities laws, and (ii) in accordance with, or pursuant to an
exemption from, the prospectus requirements of such laws, which
vary depending on the province,
10
provided that such resale restrictions may not apply to resales
made outside of Canada, depending on the circumstances;
(D) if in Ontario, (i) is purchasing Shares as principal having an
aggregate acquisition cost of not less than Cdn.$150,000, (ii)
has been recognized by the Ontario Securities Commission as an
"exempt purchaser" and is purchasing as principal, or (iii) is a
"portfolio adviser" within the meaning of Ontario Securities
Commission Rule 45-504 ("Rule 45-504") and is purchasing Shares
on behalf of a "managed account" within the meaning of Rule 45-
504;
(E) if in Quebec, (i) is purchasing Shares for his own account with
an aggregate acquisition cost of not less than Cdn.$150,000, in
accordance with section 51 of the Securities Act (Quebec), and is
not a company established solely to purchase securities on the
basis of the prospectus exemption provided for therein; (ii) is a
"sophisticated purchaser" within the meaning of Section 44 of the
Securities Act (Quebec) purchasing as principal, or (iii) is a
"sophisticated purchaser" within the meaning of Section 45 of the
Securities Act (Quebec) purchasing for the portfolio of a person
managed solely by it;
(F) if in British Columbia, is not an individual and (i) is
purchasing as principal Shares having an aggregate acquisition
cost of not less than Cdn.$97,000, or (ii) has been designated as
an "exempt purchaser" in an order made by the executive director
of the British Columbia Securities Commission and is purchasing
Shares as principal; provided that the Purchaser shall be deemed
to be acting as principal where the Purchaser is a portfolio
manager purchasing Shares as agent for an account that is fully
managed by the Purchaser; and
(G) it is the Purchaser's express wish, and the Purchaser agrees,
that all documents evidencing or relating in any way to the sale
of the Shares be drafted in the English language only. L'acheteur
des action reconnait que c'est ▇▇ ▇▇▇▇▇▇▇ expresse que tous les
documents faisant foi ou se rapportant de quelque maniere a la
vente des actions soient rediges uniquement en anglais.
SECTION 6. Survival of Representations, Warranties and Agreements.
------------------------------------------------------
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
11
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
7.1 Registration Procedures and Expenses. The Company shall:
------------------------------------
(a) as soon as practicable, prepare and file with the Commission the
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;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the staff of the Commission
to notify the Company of the staff's willingness to declare the
Registration Statement effective within 75 days after the Registration
Statement is filed by the Company;
(c) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the prospectus used in connection
therewith 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 or (ii) the date on which the Shares may
be resold by the Purchasers without registration by reason of Rule
144(k) under the Securities Act or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares registered under
the Registration Statement (and to each underwriter, if any, of such
Shares) such number of copies of prospectuses and such other documents
as the Purchaser may reasonably request, in order to facilitate the
public sale or other disposition of all or any of the Shares by the
Purchaser; provided, however, that the obligation of the Company to
deliver copies of prospectuses to the Purchaser shall be subject to
the receipt by the Company of reasonable assurances from the Purchaser
that the Purchaser will comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses;
(e) file documents required of the Company for normal blue sky clearance
in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented; and
(f) bear all expenses in connection with the procedures in paragraphs (a)
through (e) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement, other than fees and expenses,
if any, of counsel or other advisers to the Purchaser or the Other
Purchasers or underwriting discounts, brokerage fees and commissions
incurred by the Purchaser or the Other Purchasers, if any.
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
12
referred to in Section 7.1, 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:
---------------
(i) the term "Purchaser/Affiliate" shall mean the Purchaser and any
person who controls the Purchaser within the meaning of Section
15 of the Securities Act; and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement referred to in Section
7.1.
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each Purchaser/Affiliate, against any losses, claims,
damages, liabilities or expenses, joint or several, to which such
Purchasers or such Purchaser/Affiliate may become subject, under the
Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with
the written consent of the Company), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the 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 not misleading in light of the
circumstances under which they were made, or arise out of or are based
in whole or in part on any inaccuracy in the representations and
warranties of the Company contained in this Agreement, or any failure
of the Company to perform its obligations hereunder or under law, and
will reimburse the Purchaser and each such Purchaser/Affiliate for any
legal and other expenses as such expenses are reasonably incurred by
such Purchaser or such Purchaser/Affiliate in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided, however,
that the Company will not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement,
the Prospectus or any amendment or supplement thereto in reliance upon
and in conformity with written information furnished to the Company by
the Purchaser expressly for use therein, or (ii) the failure of such
Purchaser to comply with the covenants and agreements contained in
Sections 5(b) or 7.2 hereof re-
13
specting the sale of the Shares, or (iii) the inaccuracy of any
representations made by such Purchaser herein or (iv) any statement or
omission in any Prospectus that is corrected in any subsequent
Prospectus that was delivered to the Purchaser prior to the pertinent
sale or sales by the Purchaser.
(b) Each of the Purchasers will severally 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 such Purchaser) insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (i) any failure to
comply with the covenants and agreements contained in Sections 5(b) or
7.2 hereof respecting the sale of the Shares or (ii) the inaccuracy of
any representation made by such Purchaser herein or (iii) any untrue
or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements 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
any Purchaser expressly for use therein, and 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.
(c) Promptly after receipt by an indemnified party under this Section 7.3
of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 7.3 promptly notify
the indemnifying party in writing thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section
7.3 or to the extent it is not prejudiced as a result of such failure.
In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemni-
14
fied 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 and/or other indemnified
parties which 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 the case of paragraph (a), representing all
of the indemnified parties who are parties to such action, or (ii) the
indemnified party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action,
in each of which cases the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Purchaser from the placement of Common Stock or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but the
relative fault of the Company and the Purchaser in connection with the
statements or omissions or inaccuracies in the representations and
warranties in this Agreement that resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and each Purchaser on the other shall be
deemed to be in the same proportion as the amount paid by such
Purchaser to the Company pursuant to this Agreement for the Shares
purchased by such Purchaser that were sold pursuant to the
Registration Statement bears to the difference (the "Difference")
between the amount such Purchaser paid for the Shares that were sold
pursuant to the Registration Statement and the amount received by such
Purchaser from such sale. The relative fault of the Company on the one
hand and each Purchaser on the other shall be determined by reference
to, among other things, whether the untrue or alleged statement of a
material fact or the omission or alleged omission to state a material
fact or the inaccurate or the alleged inaccurate representation and/or
war-
15
ranty relates to information supplied by the Company or by such
Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section 7.3, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in paragraph
(c) of this Section 7.3 with respect to the notice of the threat or
commencement of any threat or action shall apply if a claim for
contribution is to be made under this paragraph (d); provided,
however, that no additional notice shall be required with respect to
any threat or action for which notice has been given under paragraph
(c) for purposes of indemnification. The Company and each Purchaser
agree that it would not be just and equitable if contribution pursuant
to this Section 7.3 were determined solely by pro rata allocation
(even if the Purchaser were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 7.3, no Purchaser shall
be required to contribute any amount in excess of the amount by which
the Difference exceeds the amount of any damages that such 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.
The Purchasers' obligations to contribute pursuant to this Section 7.3 are
several and not joint.
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 on the date all
such Shares are eligible for sale under Rule 144(k) 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 Stockholders, within 120 days after the end
of each fiscal year of the Company), one copy of (i) its Annual Report
to Stockholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting
principles by a national firm of certified public accountants), (ii)
if not included in substance in the Annual Report to Stockholders, its
Annual Report on Form 10-K, (iii) its Quarterly Reports on Form 10-Q,
(iv) its Current Reports on Form 8-K, and (v) a full copy of the
particular Registration Statement covering the Shares (the foregoing,
in each case, excluding exhibits);
16
(b) upon the reasonable request of the Purchaser, all exhibits excluded by
the parenthetical to subparagraph (a)(v) of this Section 7.5;
(c) upon the reasonable request of the Purchaser, a reasonable number of
copies of the prospectuses to supply to any other party requiring such
prospectuses; and
(d) upon the reasonable request of the Purchaser, the Company will meet
with the Purchaser or a representative thereof at the Company's
headquarters to discuss information relevant for disclosure in the
Registration Statement covering the Shares, subject to appropriate
confidentiality limitations as the Company may reasonably require.
SECTION 8. Broker's Fee. The Purchaser acknowledges that the Company
------------
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Purchaser and that the Placement Agent intends to enter into agreements
with the parties listed on Exhibit A attached hereto, and that such parties may
receive a portion of the fee payable by the Company to the Placement Agent. Each
of the parties hereto hereby represents that, on the basis of any actions and
agreements by it, there are no other brokers or finders entitled to compensation
in connection with the sale of the Shares to the Purchaser.
SECTION 9. Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) if to the Company, to:
NPS Pharmaceuticals, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: V.P. Corporate Development and Legal Affairs
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person at such other place as the Company shall designate
to the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of this
Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
SECTION 10. Changes. This Agreement may not be modified or amended except
-------
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 11. 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.
17
SECTION 12. Severability. In case any provision contained in this
------------
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York and the federal
law of the United States of America, without regard to conflicts of law
provisions.
SECTION 14. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
NPS PHARMACEUTICALS, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Print or Type:
Name of Purchaser (Individual or Institution):
________________________________________
Name of Individual representing Purchaser (if an Institution)
________________________________________
Title of Individual representing Purchaser (if an Institution)
________________________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser:
________________________________________
Address: ____________________________
____________________________
Telephone: ____________________________
Facsimile: ____________________________
18
Appendix I
(one of two)
NPS PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of this Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
___________________________________________________________________________
1. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:
___________________________________________________________________________
1. The mailing address of the Registered Holder listed in response to item 1
above:
___________________________________________________________________________
1. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
___________________________________________________________________________
19
NPS PHARMACEUTICALS INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Stockholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
2. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Agreement and those shares purchased by you
or your organization through other transactions:
3. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
__________________ [fill in official name of individual or institution] hereby
certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on ________
[date] in accordance with Registration Statement number _______ [fill in the
number of or otherwise identify Registration Statement] and the requirement of
delivering a current prospectus by the Company has been complied with in
connection with such sale.
Print or Type:
Name of Purchaser
(Individual or Institution):
________________________________________
Name of Individual representing Purchaser (if an Institution)
________________________________________
Title of Individual representing Purchaser (if an Institution):
________________________________________
Signature by:
Individual Purchaser or Individual representing Purchaser:
________________________________________
