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EXHIBIT 4.7
FORM OF PURCHASE AGREEMENT
THIS AGREEMENT is made as of the __ day of December, 1999, by and among
United Therapeutics Corporation (the "Company"), a corporation organized under
the laws of the State of Delaware, with its principal offices at 0000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx 00000, and the purchaser whose name and address
is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company, and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
2,500,000 shares (the "Shares") of common stock, par value $0.01 per share (the
"Common Stock"), of the Company.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
defined in Section 3), the Company will sell to the Purchaser, and the Purchaser
will buy from the Company, upon the terms and conditions hereinafter set forth,
the number of Shares (at the purchase price) shown below:
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
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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 the Prudential Vector Healthcare Group, a unit of Prudential
Securities Incorporated.
SECTION 3. Delivery of the Shares at the Closing. The completion of the
purchase and sale of the Shares (the "Closing") shall occur as soon as
practicable following notification by the Securities and Exchange Commission
(the "Commission") to the Company of the Commission'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
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"Closing Date") to be agreed upon by the Company and the Placement Agent. In the
absence of any such agreement, the Closing shall be held at the offices of
Stroock & Stroock & Xxxxx LLP, counsel to the Placement Agent, at 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 at 12:00 p.m., local time, on the fifth
business day after the Company delivers written notice to the Placement Agent of
receipt of such notification from the Commission. The Company will promptly
notify the Purchasers by facsimile transmission or otherwise of the date, place
and time of the Closing.
At the Closing, the Company shall deliver to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above and bearing an appropriate legend referring
to the fact that the Shares were sold in reliance upon the exemption from
registration under the Securities Act of 1933, as amended (the "Securities
Act"), provided by Section 4(2) thereof and Rule 506 thereunder. The Company
will promptly substitute one or more replacement certificates without the legend
at such time as the Registration Statement becomes effective. The name(s) in
which the stock certificates are to be registered are set forth in the
Registration Statement 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
in writing: (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, any one or more of which may be waived by
the Purchaser in writing: (a) the Commission has notified the Company of the
Commission's willingness to declare the Registration Statement effective on or
prior to the 60th day after the date such 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.
SECTION 4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Purchaser as
follows:
4.1. Organization and Qualification. The Company and each of the
Subsidiaries (as defined herein) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own or lease its properties
and conduct its business and the Company and each of the Subsidiaries is
qualified to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failure to so qualify would not,
individually or in the aggregate, be reasonably be expected to have a Material
Adverse Effect (as defined herein). The Company has four wholly owned
subsidiaries, Lung Rx, Inc., Unither Pharmaceuticals, Inc., Unither Telemedicine
Services Corporation and SynQuest Inc. (each, a "Subsidiary" and collectively,
the "Subsidiaries"). The
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outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are owned by
the Company, directly or indirectly, free and clear of all liens, encumbrances
and equities and claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
4.2. Authorized Capital Stock. Except as disclosed in or contemplated by
the compendium of public filing documents dated December 17, 1999 prepared by
the Company, including all Exhibits (except Exhibit E), supplements and
amendments thereto (the "Offering Materials") or otherwise in the Company's
documents filed pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Company had authorized and outstanding capital stock as set
forth under the heading "Capitalization" in the Offering Materials as of the
date set forth therein; the issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable.
4.3. Issuance, Sale and Delivery of the Shares. The Shares have been
duly authorized and, when issued, delivered and paid for in the manner set forth
in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will conform in all material respects to the description
thereof set forth in the Offering Materials. The form of the certificates for
the Shares conforms to the corporate law of the jurisdiction of the Company's
incorporation. No preemptive rights exist with respect to the issuance and sale
of the Shares by the Company pursuant to this Agreement. 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 require the Company to register the sale of any
shares owned by such stockholder under the 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
Company has full legal right, corporate power and authority to enter into the
Agreements and perform the transactions contemplated hereby. The Agreements have
been duly authorized, executed and delivered by the Company. The making and
performance of the Agreements by the Company and the consummation of the
transactions herein contemplated will not violate any provision of the
organizational documents of the Company and will not result in a material breach
or violation or constitute a default, either by itself or upon notice or the
passage of time or both, of (i) any bond, debenture, note or other evidence of
indebtedness, or under any lease, contract, indenture, mortgage, deed of trust,
loan agreement, joint venture or other agreement or instrument to which the
Company or any Subsidiary is a party or by which the Company or the Subsidiaries
may be bound or affected, (ii) the charter or bylaws of the Company or any
Subsidiary, each as currently in effect, or (iii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any court, government or
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or over their respective properties, except in the
case of clauses (i) and (iii) for such breaches, violations or defaults as would
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. As used in this Agreement, "Material Adverse Effect" means a
material adverse effect on the condition (financial or otherwise), properties,
business, prospects or results of operations of the Company and the Subsidiaries
taken as a whole. No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body having
jurisdiction over
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the Company or any Subsidiary or over their respective properties is required
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement, except for compliance with the Blue
Sky laws, under the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD") (including The Nasdaq Stock Market) and
compliance with the notice requirements under the Exchange Act. 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' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Company in Section 7.3 hereof may be
legally unenforceable.
4.5. Financial Statements. The consolidated financial statements of the
Company and the Subsidiaries, together with related notes and schedules as set
forth in the Offering Materials, present fairly the financial position and the
results of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance with
generally accepted principles of accounting, consistently applied throughout the
periods involved, except as disclosed therein, and all adjustments necessary for
a fair presentation of results for such periods have been made. The summary
financial and statistical data included in the Company's Registration Statement
on Form S-1 (No. 333-76409), as amended (the "June Registration Statement"),
presents fairly the information shown therein and such data has been compiled on
a basis consistent with the financial statements presented therein and the books
and records of the company.
4.6. Accountants. To the best of the Company's knowledge, KPMG LLP, who
have certified certain of the financial statements filed with the Commission as
part of the June Registration Statement, are independent accountants as required
by the Securities Act and the rules and regulations promulgated thereunder (the
"Rules and Regulations").
4.7. No Actions. There are no legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries, 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
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by this Agreement or result in a material adverse change in the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries, taken
as a whole (a "Material Adverse Change"); and no labor disturbance by the
employees of the Company exists, to the Company's knowledge, or is imminent
which would reasonably be expected to have a Material Adverse Effect. Neither
the Company nor the Subsidiaries are 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.
4.8. Properties. The Company and the Subsidiaries have good and
marketable title to all the properties and assets reflected as owned by them in
the consolidated financial statements included in the Offering Materials,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
(i) those, if any, reflected in such consolidated financial statements
(including the notes thereto), or (ii) those which are not material in amount.
The Company and the Subsidiaries hold their leased properties under valid and
binding leases, with such exceptions as are not materially significant in
relation to their businesses.
4.9. No Material Adverse Change. Since September 30, 1999 and except as
specifically contemplated by the Offering Materials, (i) neither the Company nor
the Subsidiaries have incurred any material liabilities or obligations,
indirect, or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which could reasonably be expected to result in a material reduction in the
future earnings of the Company; (ii) neither the Company nor the 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 the Subsidiaries have paid or
declared any dividends or other distributions with respect to its capital stock
and the Company and the Subsidiaries are not in default in the payment of
principal or interest on any outstanding debt obligations; (iv) there has not
been any change in the capital stock of the Company or the Subsidiaries other
than the sale of the Shares hereunder and shares or options issued pursuant to
employee equity incentive plans or purchase plans approved by the Company's or
the Subsidiaries' Board of Directors, as the case may be, or indebtedness
material to the Company or the Subsidiaries (other than in the ordinary course
of business); and (v) there has not been a Material Adverse Change.
4.10. Intellectual Property. Except as specifically contemplated by the
Offering Materials, (i) the Company has filed for or holds licenses or options
for the patents, patent applications, patent rights, inventions, trade secrets,
know-how, manufacturing processes, trademarks, trademark applications, service
marks, service xxxx applications, trade names, copyrights, software programs, or
other information necessary for the conduct of the Company's business as
currently conducted and as the Offering Materials indicate the Company
contemplates conducting (collectively, the "Intellectual Property"), except
where the failure to own or have the right to use such Intellectual Property
would not have a Material Adverse Effect; (ii) as required for the conduct of
their respective businesses as now conducted or proposed to be
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conducted as described in the Offering Materials, all U.S. patents owned,
assigned, or licensed by the Company and the Subsidiaries are currently in force
and being maintained; annuities on all foreign patents and foreign patent
applications have been paid; and all U.S. patent applications and foreign patent
applications indicated as pending, are pending; (iii) all trademark
applications, U.S. and foreign, indicated as pending in the Offering Materials
are pending, and all registration fees on trademarks which register on or before
the Closing Date will be paid; (iv) the Company has not terminated or breached,
and is not in violation of any agreement with respect to its Intellectual
Property rights; (v) the Company has undertaken reasonable due diligence with
respect to its existing patent licenses and patent assignment agreements,
including reasonable due diligence to confirm licensors'/assignors' rights to
transfer the corresponding intellectual property; (vi) the claims in the
Company's accepted, granted or issued foreign patents are commensurate in scope
with the claims in the Company's corresponding U.S. patents; and (vii) to the
Company's knowledge (for each of the following subsections (a) through (e)): (a)
there are no third parties who have any ownership rights to any Intellectual
Property that is owned by, or has been licensed to the Company for the product
indications described in the Offering Materials that would preclude the Company
from conducting its business as currently conducted and as the Offering
Materials indicates the Company contemplates conducting; (b) there are currently
no sales of any products that would constitute an infringement by third parties
of any Intellectual Property owned, licensed or optioned by the Company; (c)
there is no pending or threatened action, suit, proceeding or claim by others
challenging the rights of the Company in or to any Intellectual Property owned,
licensed or optioned by the Company, other than non-material claims; (d) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any Intellectual Property owned, licensed
or optioned by the Company, other than non-material claims; and (e) there is no
pending or threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violate any patent, trademark, copyright, trade
secret or other proprietary right of others, other than non-material claims.
4.11. Compliance. Neither the Company nor the Subsidiaries have been
advised, and neither has any 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, except where failure to be so
in compliance would not have a Material Adverse Effect, including: (i) (a)the
Company and each of the Subsidiaries holds all material licenses, certificates
and permits from governmental authorities which are necessary to the conduct of
their businesses, (b) the Company and each of the Subsidiaries are now and have
been in material compliance with all United States Food and Drug Administration
("FDA") and any corresponding applicable foreign regulatory authority rules,
regulations and requirements applicable to them, and have received no written
notice of violations or alleged violations of such rules, regulations and
requirements, (c) the Company and each of the Subsidiaries are not aware of any
violations of FDA rules, regulations and requirements by companies with which
the Company or any of the Subsidiaries have contracts which might result in any
Material Adverse Change and (d) the Offering Materials fairly reflect the FDA
and foreign regulatory status of the Company's proposed products; (ii) the
Company is in compliance in all material respects with all presently applicable
provisions of the
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Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur liability under (y) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension plan" or
(z) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "Code");
and each "pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification; and (iii) except as set
forth in the Offering Materials, (m) the Company and each Subsidiary is in
compliance with all rules, laws and regulations relating to the use, treatment,
storage and disposal of toxic substances and protection of health or the
environment ("Environmental Laws") which are applicable to its business (n)
neither the Company nor any Subsidiary has received any notice from any
governmental authority or third party of an asserted claim under Environmental
Laws, which claim is required to be disclosed in the Offering Materials, (o) the
Company does not currently foresee that it or the Subsidiaries will be required
to make future material capital expenditures to comply with Environmental Laws
and (p) to the best of the Company's knowledge after due inquiry, no property
which is owned, leased or occupied by the Company or the Subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq), or otherwise designated as a contaminated site under applicable state or
local law.
4.12. Taxes. Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income tax returns and has paid all taxes
shown as due thereon. All tax liabilities have been adequately provided for in
the financial statements of the Company, and the Company does not know of any
actual or proposed additional material tax assessments.
4.13. Accounting. 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 authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
4.14. Investment Company. The Company is not an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the Investment Company Act of 1940, as
amended.
4.15. Offering Materials. The Company has not distributed and will not
distribute prior to the Closing Date any offering material in connection with
the offering and sale
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of the Shares other than the Offering Materials or any amendment or supplement
thereto. The Company has not in the past nor will it hereafter take any action
independent of the Placement Agent to sell, offer for sale or solicit offers to
buy any securities of the Company which would bring the offer, issuance or sale
of the Shares, as contemplated by this Agreement, within the provisions of
Section 5 of the Securities Act, unless such offer, issuance or sale was or
shall be within the exemptions of Section 4 of the Securities Act.
4.16. Insurance. The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in the same industry.
4.17. Contributions. Since incorporation, neither the Company nor any
Subsidiary has, directly or indirectly, (i) made any unlawful contribution to
any candidate for public office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
4.18. Loans or Advances. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company or the Subsidiaries to or
for the benefit of any of the officers or directors of the Company or any of the
members of the families of any of them, except as disclosed in the Offering
Materials.
4.19. Agreements. The Company has agreements in place with substantially
all employees, consultants or other persons or parties engaged by the Company or
any Subsidiary providing for the assignment or exclusive license to the Company
of all intellectual property rights in the work performed by such persons. The
Company has agreements in place with substantially all employees, consultants or
other persons or parties engaged by the Company or any Subsidiary providing for
the protection of the trade secrets and confidential information of the Company,
each of the Subsidiaries, and of third parties.
4.20. Additional Information. The Company represents and warrants that
the information contained in the following documents, which the Placement Agent
has furnished to the Purchaser, or will furnish prior to the Closing, is or will
be true and correct in all material respects as of their respective final dates:
(a) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999;
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(c) the Registration Statement; and
(d) all other documents, if any, filed by the Company with the
Securities and Exchange Commission since September 30, 1999 pursuant
to the reporting requirements of the Exchange Act.
4.21. Year 2000 Compliance. The Company has reviewed its operations to
evaluate the extent to which the business or operations of the Company will be
affected by the Year 2000 Problem (as defined below). Based on the Company's
testing to date, the Company has no reason to believe that Year 2000 Problems
caused by its own products or internal operations would have a Material Adverse
Effect. 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 December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
4.22. Legal Opinions. Prior to the Closing, (a) Xxxxx Xxxx LLP, counsel
to the Company, will deliver its legal opinion addressed to the Purchasers in a
form reasonably satisfactory to the Purchasers, Placement Agent and counsel to
the Placement Agent, which opinion shall also state that the Placement Agent may
rely thereon as though such opinion was addressed directly to such Placement
Agent and (b) Xxxxx & Xxxxxxx, special counsel to the Company, will deliver its
legal opinion concerning patent matters to the Placement Agent in a form
reasonably satisfactory to the Placement Agent and counsel to the Placement
Agent, which opinion shall also state that each of the Purchasers may rely
thereon as though such opinion was addressed directly to such Purchasers.
4.23. Certificate. At the Closing, the Company will deliver to 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.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser represents and warrants to, and covenants with, the
Company that: (i) the Purchaser is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, has
requested, received, reviewed and considered all information it
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deems relevant in making an informed decision to purchase the Shares, and has
had a reasonable opportunity to ask questions of, and receive answers from, the
Company concerning the Company; (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
Xxxx-Xxxxx-Xxxxxx 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; (iv) the
Purchaser has completed or caused to be completed the Registration Statement
Questionnaire, 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 Offering Materials and the documents included therein and the
representations and warranties of the Company contained herein; (vi) the
Purchaser is an "accredited investor" within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act; (vii) the Purchaser is not a
registered broker dealer or engaged in the business of a broker dealer; and
(viii) the Purchaser is a resident of the jurisdiction set forth under its name
on the signature page hereto.
(b) The Purchaser hereby covenants with the Company not to make any sale
of the Shares without satisfying 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 notice of
transfer: (i) in the form of Appendix II hereto, (ii) executed by the Purchaser
or by a broker 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 determines the use of the prospectus forming a part of the
Registration Statement should be suspended until such time as an amendment or
supplement to the Registration Statement or the Prospectus has been filed by the
Company and any such amendment to the Registration Statement is declared
effective by the Commission, or until such time as the Company has filed an
appropriate report with the Commission pursuant to the Exchange Act. The
Purchaser hereby covenants that it will not sell any Shares pursuant to 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. For so long
as the Company is not eligible to use Form S-3 for the resale registration
contemplated by this Agreement, the Company agrees that it shall use its best
efforts to file as promptly as practicable an amendment or supplement to
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the Registration Statement or the Prospectus with the Commission to permit sales
to continue to be effected pursuant to the prospectus as amended or
supplemented. After the Company has effected the registration on a Form S-3 as
contemplated by Section 7.1(d), the Company agrees that it shall not suspend the
use of any said prospectus for in excess of 60 days in any 365-day period, with
no single period of suspension of greater than 30 days, based on the reasonable
determination of the Company's Board of Directors that there is a valid business
purpose for such suspension. 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 to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Purchaser in Section 7.3
hereof may be legally unenforceable.
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
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-1 relating to the resale of the
Shares by the Purchaser from time to time through the automated
quotation system of the Nasdaq National Market or the facilities
of any national securities exchange on which the Company's
Common Stock is then traded or in privately-negotiated
transactions;
(b) use its best efforts, subject to receipt of necessary
information from the Purchasers, to cause the Commission to
notify the Company of the Commission's willingness to declare
the Registration Statement effective within 60 days after the
Registration Statement is filed by the Company;
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(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)
twenty-four months 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) as soon as practicable after the Registration Statement becomes
effective, prepare, and within 10 business days after the
Company becomes eligible to file registration statements on Form
S-3 in accordance with the General Instructions regarding the
use of Form S-3, file with the Commission, such amendments and
supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to convert the
Registration Statement from a registration statement on Form S-1
to a registration statement on Form S-3;
(e) furnish to the Purchaser with respect to the Shares registered
under the Registration Statement (and to each underwriter, if
any, of such Shares) such reasonable number of copies of
prospectuses 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;
(f) 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;
(g) bear all expenses in connection with the procedures in
paragraphs (a) through (f) 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; and
(h) timely make all required filings of Exchange Act reports.
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7.2. Transfer of Shares After Registration. The Purchaser agrees that it
will not effect any disposition of the Shares or its right to purchase the
Shares that would constitute a sale within the meaning of the Securities Act,
except as contemplated in the Registration Statement referred to in Section 7.1,
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 any affiliate of the
Purchaser and any person who controls the Purchaser or any
affiliate of the Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act; and
(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 Purchaser
and each Purchaser/Affiliate against any losses, claims, damages, liabilities or
expenses, joint or several, to which such Purchaser or 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, in the light of the circumstances under which they
were made, not misleading, or arise out of or are based in whole or in part on
any material 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 each 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
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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 or on behalf of such 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 respecting sale of the Shares, or (iii)
the inaccuracy of any representations or warranties made by such Purchaser
herein, or (iv) or any failure of such Purchaser to perform its obligations
hereunder or under law, or (v) any statement or omission in any Prospectus that
is corrected in any subsequent Prospectus that was delivered to such Purchaser
prior to the pertinent sale or sales by such Purchaser.
(b) Each Purchaser 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 by such Purchaser 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 or warranty made by such
Purchaser herein or (iii) any failure of such Purchaser to perform its
obligations hereunder or under law or (iv) 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 such 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
-14-
15
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 indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it 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
indemnifying 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 such 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 such Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement which
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 such 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
-15-
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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 such Purchaser on the other shall be
determined by reference to, among other things, whether the untrue or alleged
statement of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate representation and/or
warranty relates to information supplied by the Company or by 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 such 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 each
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. The liability of each Purchaser hereunder shall be limited
to an amount equal to the Purchaser's purchase price for the Shares.
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 Purchaser's 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 upon the passage
of twenty-four months from the effective date of the Registration Statement
covering such Shares or at such earlier time as an opinion of counsel reasonably
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
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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) if
not included in substance in its Quarterly Reports to
Shareholders, its quarterly reports on Form 10-Q, and (iv) a
full copy of the particular Registration Statement covering the
Shares (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of copies
of the prospectuses to supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Purchaser, will meet with
the Purchaser or a representative thereof at the Company's headquarters to
discuss information relevant for disclosure in the Registration Statement
covering the Shares and will otherwise cooperate with any Purchaser conducting
an investigation for the purpose of reducing or eliminating such Purchaser's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters, subject to appropriate
confidentiality limitations.
SECTION 8. Broker's Fee. The Purchaser acknowledges that the Company
intends to pay to the Placement Agent a fee in respect of the sale of the Shares
to the Purchaser. Each of the parties hereto hereby represents that, on the
basis of any actions and agreements by it, there are no other brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser.
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:
United Therapeutics Corporation
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
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with a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: XxXxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
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.
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.
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.
SECTION 15. Entire Agreement. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
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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.
UNITED THERAPEUTICS CORPORATION
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:
---------------------------------
Residence:
---------------------------------
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SUMMARY INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Purchase Agreement which follows)
A. Complete the following items on BOTH Purchase Agreements:
1. Page 19 - Signature:
(i) Name of Purchaser (Individual or Institution)
(ii) Name of Individual representing Purchaser (if an Institution)
(iii) Title of Individual representing Purchaser (if an Institution)
(iv) Signature of Individual Purchaser or Individual representing
Purchaser
2. Appendix I - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
3. Return BOTH properly completed and signed Purchase Agreements
including the properly completed Appendix I to:
Prudential Vector Healthcare Group
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxx
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Placement Agent at a
later date.
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective, as described in the Purchase
Agreement, the Purchaser:
(i) must deliver a current prospectus of the Company to the
buyer (prospectuses must be obtained from the Company at
the Purchaser's request); and
(ii) must send a letter in the form of Appendix II to the
Company so that the Shares may be properly transferred.
21
APPENDIX I
UNITED THERAPEUTICS CORPORATION
REGISTRATION STATEMENT QUESTIONNAIRE
The undersigned (the "Selling Stockholder"), a purchaser of Common Stock
(the "Registrable Shares") of United Therapeutics Corporation (the "Company") to
be purchased pursuant to the Purchase Agreement, dated as of December __, 1999,
by and between the Company and the Selling Stockholder (the "Purchase
Agreement"), hereby elects to include in the Registration Statement for the
registration and resale of the Registrable Shares, the Registrable Shares listed
below in Item (3) (unless otherwise specified under Item (3)). The undersigned
agrees to be bound with respect to such Registrable Shares by the terms and
conditions of this Registration Statement Questionnaire and the Purchase
Agreement.
Upon any sale of Registrable Shares pursuant to the Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act"),
the Selling Stockholder will be required to deliver to the Company the Notice of
Transfer set forth in Appendix II attached hereto (completed and signed) and
hereby undertakes to do so.
The Selling Stockholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
(1) (a) Full Legal Name of the Selling Stockholder:
------------------------------------------------------------------------
(b) The exact name that the Registrable Shares are to be
registered in (if not the same as in (a) above) (this is
the name that will appear on the stock certificate (s)).
The Selling Stockholder may use a nominee name if
appropriate:
------------------------------------------------------------------------
(c) Full legal name of registered holder (if not the same as
in (a) above) of the Registrable Shares listed in (3)
below are held:
------------------------------------------------------------------------
I-1
22
(2) Address and Telephone Numbers for the Selling Stockholder:
------------------------------------------------------------------------
------------------------------------------------------------------------
Telephone:
--------------------------------------------------------------
Fax:
--------------------------------------------------------------------
Contact Person:
---------------------------------------------------------
(3) Beneficial Ownership:
Fill in the number of shares of Common Stock owned of record and
beneficially (see definition) by the Selling Stockholder:
Of Record Beneficially
Common Stock (other than the Registrable
Shares to be included in the Registration
Statement)
------ ------
Registrable Shares to be included in
the Registration Statement
------ ------
(a) Fill in the number of shares to which the Selling Stockholder
disclaims beneficial ownership (see definition)
-------------------------------------------------------------------
(b) Reason for disclaiming beneficial ownership (see definition) in
(a) above, if applicable:
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
(4) Other securities of the Company owned by the Selling
Stockholder:
-------------------------------------------------------------------
I-2
23
Except as set forth below and under Item (3) above, the undersigned
Selling Stockholder is not the beneficial or registered owner of any
shares of Common Stock or any other securities of the Company.
State any exceptions here:
----------------------------------------------
------------------------------------------------------------------------
(5) Relationships with the Company:
Except as set forth below, neither the Selling Stockholder nor
any of its affiliates, officers (see definition), directors or
principal shareholders (5% or more) has held any position or
office or has had any other material (see definition)
relationship with the Company (or its predecessors or affiliate)
during the past three years.
State any exceptions here:
----------------------------------------------
------------------------------------------------------------------------
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Stockholder
intends to distribute the Registrable Shares pursuant to the
Registration Statement only as follows: All or a portion of such
Registrable Shares may be sold from time to time directly by the
undersigned Selling Stockholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Shares
may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses
or block transactions) (i) on any national securities exchange
or quotation service on which the Registrable Shares may be
listed or quoted at the time of sale, (ii) in the
over-the-counter market or (iii) in transactions otherwise than
on such exchanges or services or in the over-the-counter market.
The Selling Stockholder may also loan or pledge Registrable
Shares to broker-dealers that in turn may sell such securities.
State any exceptions here:
----------------------------------------------
------------------------------------------------------------------------
(7) NASD Matters:
A. Do you know of any information pertaining to underwriting
compensation and arrangements (see definition) or any dealings between any
Underwriter or Related Person (see definition), NASD Member (see definition) or
Person Associated with a Member of the NASD
I-3
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(see definition) on the one hand, and the Company or any parent, subsidiary or
Controlling (see definition) shareholder thereof on the other hand?
Answer: [ ] Yes [ ] No If "yes," please describe
B. Are you (i) an NASD Member (see definition), (ii) a Controlling
(see definition) shareholder of an NASD Member, (iii) a Person Associated with a
Member of the NASD (see definition), or (iv) an Underwriter or a Related Person
(see definition) with respect to the proposed offering; or (b) do you own any
shares or other securities of any NASD Member not purchased in the open market;
or (c) have you made any outstanding subordinated loans to any NASD Member?
Answer: [ ] Yes [ ] No If "yes," please describe
----------------------------------------------------------
C. Have you been an underwriter, or a Controlling (see definition)
person or member of any investment banking or brokerage firm which has been or
might be an underwriter, for securities of the Company?
Answer: [ ] Yes [ ] No If "yes," please describe
----------------------------------------------------------
D. If the answer to either Question B or C above is "yes," set
forth below information as to all purchases and acquisitions (including
contracts for purchase or acquisition) of securities of the Company by you
during the last 18 months, as well as to all proposed purchases and acquisitions
which are to be consummated in whole or in part within the next 12 months.
Seller or Amount and Description
Prospective Nature of Price or Other of
Seller Securities Consideration Date Relationship
----------- ---------- ------------------ ------------
I-4
25
E. Set forth below information as to all sales and dispositions
(including contracts to sell or to dispose) of securities of the Company during
the last 18 months by you to any NASD Member (see definition) or any Person
Associated with a Member of the NASD (see definition) or any Underwriter or
Related Person (see definition) as well as to all proposed sales and
dispositions by you to such persons which are to be consummated by you in whole
or in part within the next 12 months. Also set forth below a description of the
relationship, affiliation or association of you and, if known, the other party
or parties to the above transactions with an underwriter or other person or
entity "in the stream of distribution" with respect to the offering.
Buyer or Amount and Description
Prospective Nature of Price or Other of
Buyer Securities Consideration Date Relationship
----------- ---------- ------------------ ------------
F. If you have had during the last 18 months, or are to have within
the next 12 months, any transactions of the character referred to in Question D
or E of this Section, describe briefly below the relationship, affiliation or
association of both you and, if known, the other party or parties to any such
transaction with an underwriter or other person or entity "in the stream of
distribution" with respect to the proposed transaction. In any case, where the
purchaser (whether you or any such party) is known by you to be a member of a
"private investment group," such as a hedge fund or other group of purchasers,
furnish, if known, the names of all persons comprising the Group (see
definition) and their association with or relationship to any broker-dealer.
Description:
I-5
26
The Selling Stockholder acknowledges that it understands it obligation
to comply with the provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules thereunder, relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules), in connection
with the offering of its Registrable Shares covered by the Registration
Statement. The Selling Stockholder agrees that neither it nor any person acting
on its behalf, will sell or purchase any securities of the Company in violation
of such provisions, so long as the Registrable Shares beneficially owned by it
are being offered pursuant to the Registration Statement.
In the event that the Selling Stockholder transfers all or any portion
of the Registrable Shares listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Stockholder agrees to notify
the transferee(s) at the time of the transfer of the transferee(s) rights and
obligations under this Registration Statement Questionnaire and the Purchase
Agreement.
By signing below, the Selling Stockholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (7) above
and the inclusion of such information in the Registration Statement and related
Prospectus. The Selling Stockholder understands that such information will be
relied upon by the Company in connection with the preparation of the
Registration Statement and related Prospectus and any amendments or supplements
thereto.
The undersigned Selling Stockholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein which
may occur subsequent to the date hereof at any time while the Registration
Statement is in effect. All notices hereunder shall be made in writing and shall
be deemed given (i) when made, if made by hand delivery, (ii) upon confirmation,
if made by facsimile or (iii) one business day after being deposited with a
reputable next-day courier, postage prepaid, as follows:
(i) To the Company:
United Therapeutics Corporation
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
(ii) With a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: XxXxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
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27
Once this Registration Statement Questionnaire is executed by the
Selling Stockholder and received by the Company, this Registration Statement
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Stockholder (with respect to the Registrable Shares
beneficially owned by such Selling Stockholder and listed in Item (3) above).
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Registration Statement Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
-------------------------- ----------------------------------------
Selling Stockholder
(Print/type full legal name of
Selling Stockholder)
By:
-------------------------------------
Name:
Title:
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29
EXHIBIT A
DEFINITIONS
For purposes of the representations made in this Registration Statement
Questionnaire, the following definitions shall be applicable:
Arrangement. The term "arrangement" means any plan, contract, agreement,
authorization or arrangement, whether or not set forth in writing.
Beneficial Ownership. The term "beneficially owned" as applied to an
interest in securities means (a) any direct or indirect interest in the
securities which entitles you to any of the rights or benefits of ownership,
even though you are not the holder or owner of record or (b) securities owned by
you or to which you have a right to acquire, directly or indirectly, including
those held for your own benefit (regardless of how registered) or securities
held by others for your own benefit (regardless of how registered), such as
custodians, brokers, nominees, pledgees, etc. and including securities held by
an estate or trust in which you have an interest as legatee or beneficiary,
securities owned by a partnership of which you are a partner, securities held by
a personal holding company of which you are a shareholder, etc., and securities
held in the name of your spouse, minor children and any relative (sharing the
same home). "Beneficial ownership" includes having or sharing, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise:
(1) voting power which includes the power to vote, or to direct the
voting of, such security; and/or
(2) investment power which includes the power to dispose, or to
direct the disposition, of such security. Any person who, directly or
indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any other contract, arrangement or device with the purpose or
effect of divesting such person of beneficial ownership of a security or
preventing the vesting of such beneficial ownership as part of a plan or scheme
to evade the reporting requirements of Section 13(d) of the Exchange Act, is
deemed for purposes of such section to be the beneficial owner of such security.
The Securities and Exchange Commission (the "SEC") has expressed the
view that a person may be regarded as the beneficial owner of securities which
are held in the name of such person's spouse, minor children or other relatives
(including relatives of the person's spouse) who share the person's home if the
relationship which exists results in such person obtaining benefits
substantially equivalent of ownership of the securities.
The SEC has expressed the view that a person may be deemed to be the
beneficial owner of a security if that person has the right to acquire
beneficial ownership of such security within 60 days, including, but not limited
to, any right to acquire: (1) through the exercise of any option, warrant or
right; (2) through the conversion of a security; (3) pursuant to the right to
revoke a trust, discretionary account or similar arrangements; or (4) pursuant
to the automatic termination of a trust, discretionary account or similar
arrangement.
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30
If you have any reason to believe that any interest in securities of the
Company, however remote, which you or the above-described relatives may have is
a beneficial interest, please describe such interest.
Control. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power, either individually or with others, to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)
Group. The term "group" includes a partnership, syndicate or other
group, whether formally organized or not, which has as a purpose the acquiring,
holding or disposing of securities of the Company.
Material. The term "material," when used in this Registration Statement
Questionnaire to qualify a requirement for the furnishing of information as to
any subject, limits the information required to those matters as to which there
is a substantial likelihood that a reasonable investor would attach importance
in determining whether to purchase securities of the Company. The materiality of
any relationship is to be determined on the basis of the significance of the
information to investors in light of all of the circumstances of the particular
case. The importance of the relationship, the relationship of the parties to the
transaction with each other and the amount involved in the transaction are among
the factors to be considered in determining the significance of the information
to investors. If you have any question as to whether or not a matter is
"material," please describe the matter, and, if such is the case, state your
belief that the matter is not "material."
NASD Member. The term "NASD member" means either any broker or dealer
admitted to membership in the National Association of Securities Dealers, Inc.
("NASD"). (NASD Manual, By-laws Article I, Definitions)
Officers. The term "officers" means that of the president, secretary,
treasurer, any vice president in charge of a principal business function (such
as sales, administration or finance) and any other person who performs similar
policy-making functions for the Company.
Person Associated with a member of the NASD. The term "person associated
with a member of the NASD" means every sole proprietor, partner, officer,
director, branch manager or executive representative of any NASD Member, or any
natural person occupying a similar status or performing similar functions, or
any natural person engaged in the investment banking or securities business who
is directly or indirectly controlling or controlled by a NASD Member, whether or
not such person is registered or exempt from registration with the NASD pursuant
to its bylaws. (NASD Manual, By-laws Article I, Definitions)
Underwriter or a Related Person. The term "underwriter or a related
person" means, with respect to a proposed offering, underwriters, underwriters'
counsel, financial consultants and advisors, finders, members of the selling or
distribution group, and any and all other persons associated with or related to
any of such persons. (NASD Interpretation)
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Appendix II
BROKER'S NOTICE OF TRANSFER OF SECURITIES PURSUANT TO
REGISTRATION STATEMENT
United Therapeutics Corporation
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Re: United Therapeutics Corporation
Ladies and Gentlemen:
Please be advised that ____________________________has transferred
___________________ shares (the "Shares") of Common Stock on ___________(date),
pursuant to the Registration Statement on Form S-_ (File No. 333-_______) filed
by the United Therapeutics Corporation.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Shares
is named as a selling stockholder in the Prospectus dated ____________________
or in amendments or supplements thereto, and that the aggregate number of shares
of Common Stock transferred are [a portion of] the Common Stock listed in such
owner's name.
Dated:
-----------------------
Very truly yours,
-------------------------------------------
Name:
Title:
