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REGISTRATION RIGHTS AGREEMENT
Dated as of July 31, 1997
relating to
$75,000,000 in Aggregate Principal Amount
of 6 1/4% Convertible Subordinated
Debentures Due 2004
by and among
NeXstar Pharmaceuticals, Inc.
and
SBC Warburg Inc.
and
Xxxxxxxxxxx & Co., Inc.
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of July 31, 1997 by and between NeXstar Pharmaceuticals, Inc. a
Delaware corporation (the "Company"), and SBC Warburg Inc. and Xxxxxxxxxxx &
Co. Inc. (the "Initial Purchasers"), who will purchase $75,000,000 in aggregate
principal amount of 6 1/4% Convertible Subordinated Debentures Due 2004 (the
"Debentures") of the Company (excluding up to an additional $5,000,000
aggregate principal that may be purchased by the Initial Purchasers pursuant to
their over-allotment option) pursuant to the Purchase Agreement dated July 28,
1997 (the "Purchase Agreement") between the Company and the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in the Purchase Agreement. All
defined terms used but not defined herein shall have the meanings ascribed to
them in the Indenture (as defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Closing Date: The date on which the Debentures are first sold by the
Company to the Initial Purchasers pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Common Stock: The Common Stock, par value $.01 per share, of the
Company.
Damages Payment Date: With respect to the Debentures or the Common
Stock, as applicable, each Interest Payment Date as defined in the Indenture.
Effectiveness Date: The date on which the Shelf Registration Statement
is declared effective by the Commission under the Act.
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Effectiveness Target Date: As defined in Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Debentures to (i) certain "qualified institutional buyers"
(as such term is defined in Rule 144A under the Act) and (ii) to certain
persons in offshore transactions in reliance on Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, to be dated as of July 31, 1997, among the
Company and IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Trustee"),
pursuant to which the Debentures are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture.
Latest Issuance Date: The latest date on which any of the Debentures
are originally issued by the Company pursuant to the terms of the Purchase
Agreement.
NASD: The National Association of Securities Dealers, Inc.
Offering Memorandum: The Offering Memorandum, dated July 28, 1997, and
all amendments and supplements thereto, relating to the Debentures and prepared
by the Company pursuant to the Purchase Agreement.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Preliminary Prospectus: As defined in Section 3(f).
Prospectus: The prospectus included in the Shelf Registration
Statement, as amended or supplemented by any Prospectus Supplement with respect
to the terms of the offering of any portion of the Transfer Restricted
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Securities (as defined herein) covered by the Shelf Registration Statement and
by all other amendments and supplements to the prospectus, including post-
effective amendments, and all material which may be incorporated by reference
into such prospectus.
Prospectus Supplement: As defined in Section 5(b).
Record Holder: (i) With respect to any Damages Payment Date relating
to the Debentures, each Person who is registered on the books of the Registrar
as the holder of Debentures on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur and (ii) with
respect to any Damages Payment Date relating to the Common Stock constituting
Transfer Restricted Securities, each Person who is a holder of record of such
Common Stock fifteen days prior to the Damages Payment Date.
Registration Expenses: As defined in Section 6(a).
Shelf Registration Statement: As defined in Section 3(a) hereof.
Suspension Period: As defined in Section 3(a).
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Debenture and underlying share of
Common Stock of the Company issuable upon conversion of a Debenture, until the
date on which each such Debenture or underlying share of Common Stock (i) has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144 or (iii) may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in force).
Underwriter: Any underwriter, placement agent, selling broker, dealer
manager, qualified independent underwriter or similar securities industry
professional.
Underwritten Registration or Underwritten Offering: An offering in
which securities of the Company
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are sold to an Underwriter or with the assistance of such Underwriter for
reoffering to the public on a firm commitment or best efforts basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) The Company shall cause to be filed with the Commission on or
prior to 60 days after the Closing Date, a shelf registration statement
pursuant to Rule 415 under the Act (as may then be amended) (the "Shelf
Registration Statement") on Form S-1 or Form S-3, if the use of such form is
then available and as determined by the Company, to cover resales of Transfer
Restricted Securities by the Holders thereof who satisfy certain conditions
relating to the provision of information in connection with the Shelf
Registration Statement. The Holders of such Transfer Restricted Securities
shall have provided the information required pursuant to Section 3(f) hereof.
The Company shall use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or prior to 90 days
from the Closing Date. The Company shall use its best efforts to keep such
Shelf Registration Statement continuously effective for a period ending two
years from the Effectiveness Date or such shorter period that will terminate
when each of the Transfer Restricted Securities covered by the Shelf
Registration Statement ceases to be a Transfer Restricted Security. The
Company further agrees to use its best efforts to prevent the happening of any
event that would cause the Shelf Registration Statement to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
be not effective and usable for resale of the Transfer Restricted Securities
during the
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period that such Shelf Registration Statement is required to be effective and
usable.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) to be not effective and
usable for resale of Transfer Restricted Securities during the period that such
Shelf Registration Statement is required to be effective and usable, the
Company shall as promptly as practicable take such action, including, if
necessary, filing an amendment to the Shelf Registration Statement, correcting
any such misstatement or omission, and using its best efforts to cause any such
amendment to be declared effective and/or such Shelf Registration Statement to
become usable as soon as practicable thereafter.
Notwithstanding anything to the contrary in this Section 3,
subject to compliance with Sections 4 and 5(b), if applicable, the Company may
prohibit offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement at any time if (A) (i) it is in possession of
material non-public information, (ii) the Board of Directors of the Company
determines (based on advice of counsel) that such prohibition is necessary in
order to avoid a requirement to disclose such material non-public information
and (iii) the Board of Directors of the Company determines in good faith that
disclosure of such material non-public information would not be in the best
interests of the Company and its shareholders or (B) the Company has made a
public announcement relating to an acquisition or business combination
transaction including the Company and/or one or more of its subsidiaries (i)
that is material to the Company and its subsidiaries taken as a whole and (ii)
the Board of Directors of the Company determines in good faith that offers and
sales of Transfer Restricted Securities pursuant to the Shelf Registration
Statement prior to the consummation of such transaction (or such earlier date
as the Board of Directors shall determine) is not in the best interests of the
Company and its shareholders (the period during which any such prohibition of
offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement is in effect pursuant to clause (A) or (B) of this
subparagraph (a) is referred to herein as a "Suspension Period"). A Suspension
Period shall commence on and include the date on which the Company provides
written notice to Holders of Transfer Restricted Securities covered
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by the Shelf Registration Statement that offers and sales of Transfer
Restricted Securities cannot be made thereunder in accordance with this Section
3 and shall end on the date on which each Holder of Transfer Restricted
Securities covered by the Shelf Registration Statement either receives copies
of a Prospectus Supplement contemplated by Section 5(b) or is advised in
writing by the Company that offers and sales of Transfer Restricted Securities
pursuant to the Shelf Registration Statement and use of the Prospectus may be
resumed.
(b) None of the Company nor any of its security holders
(other than (i) the Holders of Transfer Restricted Securities in such capacity
and (ii) other shareholders or warrantholders listed on Schedule I hereto
having registration rights permitting them to participate therein, as described
on Schedule I hereto) shall have the right to include any of the Company's
securities in the Shelf Registration Statement.
(c) If the Holders of a majority of the outstanding
Transfer Restricted Securities so elect (with holders of Common Stock
constituting Transfer Restricted Securities being deemed to be Holders of the
aggregate principal amount of Debentures converted into such Common Stock for
purposes of such calculation), an offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering, provided, however, that notwithstanding anything
contained in this Agreement to the contrary, the Company shall not be required
to undertake more than one such Underwritten Offering during any consecutive 12
month period. The Holders of the Transfer Restricted Securities to be
registered shall pay all underwriting discounts and commissions of such
Underwriters and the fees and expenses of any counsel for the Holders.
(d) If any of the Transfer Restricted Securities covered
by the Shelf Registration Statement are to be sold in an Underwritten Offering,
the Underwriter(s) that will administer the offering will be selected by the
Holders of a majority of the outstanding Transfer Restricted Securities (with
holders of Common Stock constituting Transfer Restricted Securities being
deemed to be Holders of the aggregate principal amount of Debentures converted
into such Common Stock for purposes of such calculation); provided, however,
that such Underwriter(s) shall be reasonably satisfactory to the Company.
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(e) Each Holder whose Transfer Restricted Securities are covered
by a Shelf Registration Statement filed pursuant to this Section 3 agrees, upon
the request of the Underwriter(s) in any Underwritten Offering, not to effect
any sale or distribution of securities of the Company of the same class as the
securities included in such Shelf Registration Statement for a period of up to
90 days beginning on the date any such Underwritten Offering made pursuant to
such Shelf Registration Statement commences, to the extent timely notified in
writing by such Underwriter(s).
(f) The Company shall include in the Registration Statement as of
the Effective Date all Transfer Restricted Securities which any Holder shall
have elected (each, an "Electing Holder") to include in the Registration
Statement as specified in a completed questionnaire substantially in the form
attached hereto as Exhibit A (a "Selling Securityholder's Questionnaire"),
received by the Company on or prior to the date 30 calendar days after the
Closing Date (the "Initial Questionnaire Deadline"). As used herein, the term
"Specified Registrable Securities" shall mean all Transfer Restricted
Securities that the Electing Holders have elected to include in the
Registration Statement as provided in the preceding sentence on or prior to the
Initial Questionnaire Deadline. Each person acquiring Specified Registrable
Securities from an Electing Holder after the date on which such Electing Holder
provided the Company its Selling Securityholder's Questionnaire shall also be
entitled to have such Specified Registrable Securities included in the
Registration Statement so long as such person provides the Company with an
updated Selling Securityholder's Questionnaire. Any such transferee shall be
entitled to have its Specified Registrable Securities included in the
Registration Statement (i) at the Effective Date, if the updated Selling
Securityholder's Questionnaire is received by the Company on or prior to the
date 10 calendar days prior to the Effectiveness Date and (ii) in all other
cases, reasonably promptly after the Company receives the updated Selling
Securityholder's Questionnaire. In the case of any Specified Registrable
Securities which are not included in the Registration Statement at the
Effectiveness Date and as to which an updated Selling Securityholder's
Questionnaire has been furnished to the Company, the Company shall include such
Transfer Restricted Securities in the Registration Statement reasonably
promptly and in connection therewith shall file such post-effective amendments
to the Registration Statement or supplements to
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the Prospectus as may be required by the Act to permit the resale of such
Specified Registrable Securities. The Company may include information contained
in any Selling Securityholder's Questionnaire to the extent reasonably required
in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus (a "Preliminary Prospectus") included therein and each
Electing Holder shall provide the Company promptly after written request with
such additional or updated information as the Company shall reasonably request
in connection therewith.
SECTION 4. LIQUIDATED DAMAGES
(a) If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to 60 days after the Closing Date, or the Shelf
Registration Statement has not been declared effective by the Commission within
90 days after the Closing Date (the "Effectiveness Target Date"), or (ii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or useable for
the offer and sale of Transfer Restricted Securities for a period of time
(including any Suspension Period) which shall exceed 60 days in the aggregate
in any of the one-year periods ending on the first or second anniversaries of
the Closing Date, or which shall exceed 30 days in any calendar quarter within
any of such one-year periods (each such event referred to in clauses (i) and
(ii), a "Registration Default"), the Company will pay liquidated damages to
each Holder of Transfer Restricted Securities. The amount of liquidated
damages payable during any period during which a Registration Default shall
have occurred and be continuing is that amount which is equal to $0.05 per week
per $1,000 principal amount of Debentures, or $0.001 per week per share of
Common Stock (subject to adjustment in the event of stock splits, stock
recombinations, stock dividends and the like) constituting Transfer Restricted
Securities, for each 90-day period or part thereof until the applicable
registration statement covering such Transfer Restricted Securities is filed
and the applicable registration statement is declared effective, or the Shelf
Registration Statement again becomes effective or usable, as the case may be,
up to a maximum amount of liquidated damages of $0.25 per week per $1,000
principal amount of Debentures or $0.05 per week per share (subject to
adjustment as set forth above) of Common Stock constituting
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Transfer Restricted Securities. The Company shall notify the Trustee and the
Initial Purchasers within one business day after each and every date on which a
Registration Default occurs. All accrued liquidated damages shall be paid to
Record Holders by wire transfer of immediately available funds or by federal
funds check by the Company on each Damages Payment Date. Following the cure
of a Registration Default, liquidated damages will cease to accrue with respect
to such Registration Default.
All of the Company's obligations set forth in the preceding
paragraph which are outstanding with respect to any Transfer Restricted
Security shall cease at the time such security ceases to be a Transfer
Restricted Security.
The parties hereto agree that the liquidated damages provided
in this Section 4 constitute a reasonable estimate of the damages that will be
incurred by Holders of Transfer Restricted Securities by reason of the failure
of the Shelf Registration Statement to be filed, declared effective or to
remain effective, as the case may be.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the
Company will use its best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution or disposition thereof, and pursuant
thereto the Company will:
(a) on or prior to the date 60 days after the Closing Date,
prepare and file with the Commission a Shelf Registration Statement relating to
the registration on Form S-1 or Form S-3, if the use of such form is then
available and as determined by the Company, for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof and shall include all financial statements required to be
included or incorporated by reference therein; cooperate and assist in any
filings required to be made with the NASD and use its best efforts to cause
such Shelf Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the selling
Holders to consummate the disposition of such Transfer Restricted Securities;
provided, however, that before filing a Shelf Registration Statement or any
Prospectus, or any amendments or supplements thereto, the Company will furnish
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to the Holders and the Underwriter(s), if any, copies of all such documents
proposed to be filed (except that the Company shall not be required to furnish
any exhibits to such documents, including those incorporated by reference,
unless so requested by a Holder or Underwriter in writing), and the Company
will not file any Shelf Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which (i) the Underwriter(s), if any,
shall reasonably object or (ii) if there are no Underwriters, the Holders of a
majority of the outstanding Transfer Restricted Securities shall reasonably
object (with holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the aggregate principal amount of
Debentures converted into such Common Stock for purposes of such calculation),
in each such case within five business days after the receipt thereof. A
Holder or Underwriter, if any, shall be deemed to have reasonably objected to
such filing if the Shelf Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading which
misstatement or omission is specifically identified to the Company in writing
within such five business days;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for the applicable
period set forth in Section 3(a) hereof; cause the Prospectus to be
supplemented by any required supplement thereto (a "Prospectus Supplement"),
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424 and 430A under the Act
in a timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Shelf Registration
Statement, Prospectus or Prospectus Supplement;
(c) if requested by the Holders of Transfer Restricted Securities,
or, if the Transfer Restricted Securities are being sold in an Underwritten
Offering, the Underwriter(s) of such Underwritten Offering, promptly
incorporate in the Prospectus, any Prospectus Supplement or post- effective
amendment to the Shelf Registration Statement
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such information as the Underwriters and/or the Holders of Transfer Restricted
Securities being sold agree should be included therein relating solely to the
plan of distribution of the Transfer Restricted Securities, including, without
limitation, information with respect to the principal amount of Debentures
and/or the number of shares of Common Stock being sold to such Underwriter(s),
the purchase price being paid therefor and any other customary terms with
respect to the offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such Prospectus, Prospectus
Supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus, Prospectus
Supplement or post-effective amendment;
(d) advise the Underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in writing,
(i) when the Prospectus or any Prospectus Supplement or post-effective
amendment to the Shelf Registration Statement has been filed, and, with respect
to the Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective, (ii) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Shelf Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (iv) if at any time the
representations and warranties of the Company contemplated by paragraph (m)(i)
below cease to be true and correct, and (v) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the
Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted
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Securities under state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(e) furnish to each Holder and each of the Underwriter(s), if any,
without charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits to the Shelf
Registration Statement (excluding exhibits to documents incorporated by
reference therein unless requested by such Holder or Underwriter);
(f) deliver to each selling Holder and each of the Underwriter(s),
if any, without charge, as many copies of any Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto as such Persons may
reasonably request; the Company consents to the use of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto by each
of the selling Holders and each of the Underwriter(s), if any, in connection
with the public offering and the sale of the Transfer Restricted Securities
covered by any Preliminary Prospectus and the Prospectus or any amendments or
supplements thereto;
(g) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the Underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or Underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdiction of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that
the Company shall not be required (i) to register or qualify as a foreign
corporation where it is not now so qualified or (ii) to take any action that
would subject it to the service of process in suits, other than as to matters
and transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject;
(h) cooperate with the selling Holders and the Underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted
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Securities to be in such denominations and registered in such names as the
Holders or the Underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities;
(i) use its best efforts to cause the Transfer Restricted
Securities covered by the Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
reasonably necessary to enable the seller or sellers thereof or the
Underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the provisos contained in clause (h) above;
(j) if any fact or event contemplated by clause (d)(v) above shall
exist or have occurred, prepare a post-effective amendment or supplement to the
Shelf Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(k) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture and/or the transfer agent for the
Common Stock with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust Company;
(l) enter into such agreements (including an underwriting
agreement reasonably acceptable to the Company) and take all such other actions
in connection therewith as may reasonably be required in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant to
the Shelf Registration Agreement, in connection with an Underwritten
Registration, and (i) make such representations and warranties to the Holders
and the Underwriter(s), in form, substance and scope as they may reasonably
request and as are customarily made by issuers to Underwriters in primary
Underwritten Offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (ii) obtain opinions of counsel for
the Company and updates thereof in customary form and covering matters
reasonably requested by the Underwriter(s)
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of the type customarily covered in legal opinions to Underwriters in connection
with primary Underwritten Offerings addressed to each selling Holder and the
Underwriter requesting the same and covering the matters as may be reasonably
requested by such Holders and Underwriters; (iii) obtain "cold comfort" letters
and updates thereof from the Company's independent certified public
accountants, and the independent certified public accountants of any other
corporation or person ("Other Companies") with respect to which audited
financial statements are required to be included or incorporated by reference
in the Shelf Registration Statement, addressed to the selling Holders of
Transfer Restricted Securities and the Underwriters requesting the same, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters to Underwriters in connection with primary
Underwritten Offerings; (iv) set forth in full or incorporate by reference in
the underwriting agreement the indemnification provisions and procedures of
Section 7 hereof with respect to all parties to be indemnified pursuant to said
Section; and (v) deliver such documents and certificates as may be reasonably
requested by the Holders of the Transfer Restricted Securities being sold or
the Underwriter(s) of such Underwritten Offering to evidence compliance with
clause (i) above and with any customary conditions contained in the
underwriting agreement entered into by the Company pursuant to this clause (m).
The above shall be done at or prior to each closing under such underwriting
agreement, as and to the extent required thereunder;
(m) make available at reasonable times and in a reasonable manner
for inspection by a representative of the Holders of the Transfer Restricted
Securities, any underwriter participating in any disposition pursuant to such
Shelf Registration Statement and any attorney or accountant retained by such
selling Holders or any of the Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, Underwriter, attorney or accountant in
connection with such Shelf Registration Statement prior to its effectiveness;
provided, however, that such representatives, attorneys or accountants shall
agree to keep confidential (which agreement shall be confirmed in writing in
advance to the Company if the Company shall so request) all information,
records or documents made available to such persons which
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are not otherwise available to the general public unless disclosure of such
records, information or documents is required by court or administrative order
(of which the Company shall have been given prior notice and an opportunity to
defend) after the exhaustion of all appeals therefrom, and to use such
information obtained pursuant to this provision only in connection with the
transaction for which such information was obtained, and not for any other
purpose;
(n) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act, for the twelve-month period (i)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to Underwriters in a firm commitment or best efforts
Underwritten Offering or (ii) if not sold to Underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration Statement;
(o) cause the Indenture to be qualified under the TIA, and, in
connection therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner;
(p) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment;
(q) cause all Transfer Restricted Securities (other than the
Debentures) covered by the Shelf Registration Statement to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed if requested by the Holders of a majority of the
outstanding Transfer Restricted Securities (with holders of Common Stock
constituting Transfer Restricted Securities being deemed to be Holders of the
aggregate principal amount of Debentures converted into
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such Common Stock for purposes of such calculation) or the Underwriters, if
any; and
(r) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
Underwriter (including any "qualified independent Underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading or necessary to cause
such Shelf Registration Statement not to omit a material fact with respect to
such Holder necessary in order to make the statements therein not misleading.
Each Holder agrees by acquisition of such Transfer Restricted
Securities that, upon receipt of any notice from the Company of the existence
of any fact of the kind described in Section 5(d)(v) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings with respect to the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of the Shelf Registration Statement set forth in Section 3(a)
hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 5(d)(v)
hereof to and including the date when each selling Holder covered by such Shelf
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof or shall have received
the Advice.
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SECTION 6. REGISTRATION EXPENSES
(a) Except as set forth in Section 6(b) hereof, all expenses
incident to the Company's performance of or compliance with this Agreement (the
"Registration Expenses") will be borne by the Company, regardless of whether a
Shelf Registration Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses
(including filings made with the NASD);
(ii) reasonable fees and expenses of compliance with
federal securities or state blue sky laws;
(iii) expenses of printing (including, without
limitation, expenses of printing or engraving certificates for the
Transfer Restricted Securities in a form eligible for deposit with
Depository Trust Company and of printing the Prospectus and any
Preliminary Prospectus), messenger and delivery services and
telephone;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent
certified public accountants of the Company (including the expenses of
any "cold comfort" letters required by or incidental to the
preparation and filing of a Shelf Registration Statement and
Prospectus and the disposition of Transfer Restricted Securities);
(vi) fees and expenses associated with any NASD filings
and approval required to be made in connection with the Shelf
Registration Statement; and
(vii) fees and expenses of listing the Transfer
Restricted Securities on any securities exchange or quotation system
in accordance with Section 5(r) hereof.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
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(b) The Holders of Transfer Restricted Securities shall bear the
expense of any broker's commission or Underwriter's discount or commission and
the fees and expenses of any counsel for the Holders. In addition, each Holder
of Transfer Restricted Securities shall pay all Registration Expenses to the
extent required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each of
the Initial Purchasers, (ii) each Holder, (iii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) either of the Initial Purchasers or any Holder (any of the
persons referred to in this clause (iii) being hereinafter referred to as a
"controlling person") and (iv) the respective officers, directors, partners,
employees, representatives and agents of the Initial Purchasers, any Holder or
any controlling person (any person referred to in clause (i), (ii), (iii) or
(iv) may hereinafter be referred to as a "Non-Company Indemnitee"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement,
Prospectus or Preliminary Prospectus (or any amendments or supplements
thereto), including any document incorporated by reference therein, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except, with respect to any Non-Company Indemnitee, insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Non-Company Indemnitee
expressly for use therein.
(b) In case any action shall be brought against any Non- Company
Indemnitee, based upon the Shelf Registration Statement, Prospectus, or
Preliminary Prospectus (or any amendments or supplements thereto), and with
respect to which indemnity may be sought against the Company pursuant to this
Section 7, such Non-Company Indemnitee shall promptly notify the Company in
writing and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses;
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provided, however, that the omission so to notify the Company shall not relieve
the Company from any liability that it may have to any Non-Company Indemnitee
(except to the extent that the Company is materially prejudiced or otherwise
forfeits substantive rights or defenses by reason of such failure). Such Non-
Company Indemnitee shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
counsel shall be paid by such Non-Company Indemnitee, unless (i) the employment
of such counsel shall have been specifically authorized in writing by the
Company, (ii) the Company shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both such Non-Company Indemnitee and the Company and it would
be inappropriate for the same counsel to represent such Non-Company Indemnitee
and the Company (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Non-Company Indemnitee, it being
understood, however, that the Company shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for the Non-Company Indemnitees, which firm
shall be designated in writing by the Non-Company Indemnitees and whose fees
and expenses reasonably incurred shall be reimbursed as they are incurred).
The Company shall not be liable for any settlement of any such action effected
without the written consent of the Company, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Non-Company Indemnitee from and against any amounts payable pursuant to such
written consent in connection with such settlement. The Company shall not,
without the prior written consent of such Non-Company Indemnitee, effect any
settlement of any pending or threatened proceeding in respect of which such
Non-Company Indemnitee is or could have been a party and indemnity could have
been sought hereunder by such Non-Company Indemnitee, unless such settlement
includes an unconditional release of such Non-Company Indemnitee from all
liability on claims that are the subject matter of such proceeding.
(c) Each Holder of Transfer Restricted Securities agrees to
indemnify and hold harmless (i) the Company, (ii) each of the Initial
Purchasers, (iii) each other
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Holder, (iv) any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, the Initial Purchasers and
each other Holder and (v) the respective officers, directors, partners,
employees, representatives and agents of each of the parties referred to in
clauses (i), (ii), (iii) and (iv), to the same extent as the foregoing
indemnity from the Company to each of the Non-Company Indemnitees, but only
with respect to information relating to such Holder that was furnished in
writing by such Holder to the Company expressly for use in the Shelf
Registration Statement (or any amendment or supplement thereto). In no event
shall the liability of any selling Holder hereunder be greater in amount than
the greater of (i) the dollar amount of the proceeds received by such Holder
upon the sales of the Transfer Restricted Securities giving rise to such
indemnification obligation, and (ii) the amount paid by the selling Holder for
such Transfer Restricted Securities.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party, on the one hand, and the indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party, on the one hand, or the
indemnified party, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, each of the Initial Purchasers and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take
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account of the equitable considerations referred to in the immediately
preceding paragraph. The losses, claims, damages, liabilities or judgments of
an indemnified party referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim (but only to the extent
such investigation or defense was reasonably necessary) prior to the
indemnifying party's assumption of the defense thereof or subsequent thereto to
the extent permitted by the second sentence of Section 7(b) hereof.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total amount received by such Holder with respect to the sale of
Transfer Restricted Securities exceeds the sum of (A) the amount paid by such
Holder for such Debentures plus (B) the amount of any damages which such Holder
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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of
Debentures held by each of the Holders hereunder and not joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
of the Debentures or shares of Common Stock that are Transfer Restricted
Securities remain outstanding (and are "restricted securities" within the
meaning of Rule 144 under the Act)and during any such period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act, to make
available to any Initial Purchaser or any beneficial owner of the Debentures or
shares of such Common Stock in connection with any sale thereof and any
prospective purchaser of such Debentures or Common Stock from such Initial
Purchaser or beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
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SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements and
(c) furnishes the Company in writing information in accordance with Section
3(f) and agrees to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the extent contemplated by Section 7(c).
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
Underwriter(s) that will administer the offering will be selected by the
Holders of the Transfer Restricted Securities included in such offering in the
manner specified in Section 3(c); provided, however, that such Underwriters
must be reasonably satisfactory to the Company and further provided, however,
that notwithstanding anything contained in this Agreement to the contrary, the
Company shall not be required to undertake more than one such Underwritten
offering during any consecutive 12 month period.
SECTION 11. MISCELLANEOUS
(a) Remedies. Each Holder of Transfer Restricted Securities, in
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and granted by law, including recovery of
damages, will be entitled to specific performance of such Holder's rights under
this Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
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(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders of Transfer
Restricted Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of a majority of the outstanding Transfer Restricted Securities affected by
such amendment, modification, supplement, waiver or departure (with holders of
Common Stock constituting Transfer Restricted Securities being deemed to be
Holders of the aggregate principal amount of Debentures converted into such
Common Stock for purposes of such calculation). Notwithstanding the foregoing,
a waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders of Transfer Restricted Securities whose
securities are being sold pursuant to such Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities shall be valid only with the written consent of
Holders of at least 66 2/3% of the Transfer Restricted Securities being sold,
in each case calculated in accordance with the provisions of Section 3(c).
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Transfer Restricted Securities, at
the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser, initially at
its address set forth in the Purchase Agreement and thereafter at such
other address, notice
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of which is given in accordance with the provisions of this Section.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder of Transfer Restricted Securities unless
and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder; and provided, further, that nothing herein shall
be deemed to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement or
applicable law. If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms
of this Agreement and by taking and holding such Transfer Restricted Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such Person shall
be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NeXstar Pharmaceuticals, Inc.
By: /s/ XXXXX X. XXXXX
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
SBC Warburg Inc.
Xxxxxxxxxxx & Co., Inc.
By: SBC Warburg Inc.
By: /s/ XXXXX X. XXXX
----------------------------
Name: Xxxxx X. Xxxx
Title: Associate Director
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Exhibit A
NAME:
---------------------
NeXstar Pharmaceuticals, Inc.
Selling Securityholder's Questionnaire
IN CONNECTION WITH THE PROPOSED REGISTRATION
OF SECURITIES OF NEXSTAR PHARMACEUTICALS, INC.
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated as of July _, 1997 between NeXstar
Pharmaceuticals, Inc.(the "Company") and the Purchasers named therein.
Pursuant to the Registration Rights Agreement, the Company agreed to file a
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), for the registration and sale under the Securities Act of
the Company's ___% Convertible Subordinated Debentures Due 2004 (the
"Debentures") and the shares of Common Stock of the Company issuable upon
conversion of the Debentures. The undersigned beneficial owner (the "Selling
Securityholder") of Registrable Securities (as defined in the Registration
Rights Agreement) hereby elects pursuant to the Registration Rights Agreement
to include in the Registration Statement the Registrable Securities
beneficially owned by it and listed in Item 4 below (unless otherwise specified
under Item 4). The inclusion in the Registration Statement of the Registrable
Securities owned by the Selling Securityholder shall be made in accordance with
and shall be subject to the provisions of the Registration Rights Agreement.
The Selling Securityholder is providing this Questionnaire to provide the
Company with information necessary for the inclusion in the Registration
Statement of the Registrable Securities beneficially owned by the Selling
Securityholder. All capitalized terms not otherwise defined herein shall have
the meanings given to them in the Registration Rights Agreement.
i. Complete Name of Selling Securityholder:
ii. Address for Notices:
29
iii. Contact Person:
Name:
Address:
Tel.:
Fax.:
iv. Registrable Securities Beneficially
Owned by the Selling Securityholder:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER DOES
NOT OWN ANY DEBENTURES OR SHARES OF COMMON STOCK HERETOFORE ISSUED
UPON CONVERSION OF ANY DEBENTURE.
Principal Amount of Debentures:
Shares of Common Stock Heretofore Issued Upon Conversion of
Debentures:
v. Other Shares of Common Stock or Other
Securities of the Company Owned by the
Selling Securityholder:
EXCEPT AS SET FORTH BELOW, AND UNDER ITEM 4, THE UNDERSIGNED SELLING
SECURITYHOLDER DOES NOT OWN ANY SHARES OF COMMON STOCK OR ANY OTHER
SECURITIES OF THE COMPANY.
vi. Except as set forth below, the Selling
Securityholder has held no position or office
or has had any other material relationship
with the Company (or predecessor or affiliate
of the Company) during the past three years.
vii. The Selling Securityholder acknowledges that
it understands its obligation to comply with
the provisions of the
A-2
30
Securities Exchange Act of 1934, and the
rules thereunder, relating to stock
manipulation, in connection with the offering
of its Registrable Securities covered by the
Registration Statement. The Selling
Securityholder agrees that neither it nor any
person acting on its behalf, will bid for, or
purchase any securities of the Company in
violation of such provisions, so long as the
Registrable Securities beneficially owned by
it are being offered pursuant to the
Registration Statement.
By its signature below, the Selling Securityholder consents to the disclosure
of the information contained herein to the extent required by the federal and
state securities laws and the rules of the Commission. The Selling
Securityholder understands that the information that is being furnished to the
Company in this Questionnaire will be relied upon by the Company in connection
with the preparation of the Registration Statement. The Selling Securityholder
agrees to promptly notify the Company of any changes in such information which
may occur subsequent to the date hereof.
Dated: , 199
----------- -- ---------------------------
Selling Securityholder
By:
------------------------
Name:
Title:
A-3
