Exhibit 4.4
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement"), dated as of October 27, 2000,
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is entered into by and between Myriad Genetics Inc., a Delaware corporation with
offices at 000 Xxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000 (the "Company"), and Acqua
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Wellington North American Equities Fund, Ltd., a company organized under the
laws of the Commonwealth of the Bahamas, with offices c/o Fortis Fund Services
(Bahamas) Ltd., Xxxxxxxx Xxxxxxxx Centre, East Bay Street, P. O. Box SS-6238,
Nassau, Bahamas (the "Purchaser"), for the purchase and sale of shares of the
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common stock, par value $0.01 per share (the "Common Stock"), of the Company by
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the Purchaser, in the manner, and upon the terms, provisions and conditions set
forth in this Agreement.
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Purchaser
and Purchaser shall purchase shares of Common Stock; and
WHEREAS, such purchase and sale will be made in reliance upon the
provisions of Section 4(2) and Rule 901 of Regulation S ("Regulation S") of the
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United States Securities Act of 1933, as amended and regulations promulgated
thereunder (the "Securities Act"), or upon such other exemption from the
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registration requirements of the Securities Act as may be available with respect
to any or all of the purchases of Common Stock to be made hereunder.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements contained herein and other good and valuable consideration, the
receipt and legal adequacy of which is hereby acknowledged by the parties, the
Company and the Purchaser hereby agree as follows:
1. Purchase Price.
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(a) Upon the following terms and subject to the conditions contained
herein, the Purchaser hereby agrees to purchase 400,000 shares of the Company's
Common Stock (the "Shares") at a per share price of $102.50 and for an
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aggregate purchase price of $41,000,000 (the "Purchase Price").
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(b) The Company has authorized and has reserved and covenants to
continue to reserve, free of preemptive rights and other similar contractual
rights of stockholders, a sufficient number of its authorized but unissued
shares of its Common Stock, to effect the issuance of the Shares.
(c) The closing under this Agreement shall take place at the offices
of the Xxxxxx Xxxxxx LLP, The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 1:00 p.m. (eastern time) upon the satisfaction of each of the
conditions set forth in Section 5 hereof (the "Closing Date").
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2. Representations, Warranties and Covenants of the Purchaser. The
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Purchaser represents and warrants to the Company, and covenants for the benefit
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of the Company, as follows:
(a) This Agreement has been duly authorized, validly executed and
delivered by the Purchaser and is a valid and binding agreement and obligation
of the Purchaser enforceable against the Purchaser in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and the Purchaser has full power and authority to execute and deliver
this Agreement and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
(b) The Purchaser has received and carefully reviewed copies of the
Public Document (as hereinafter defined). The Purchaser understands that no
Federal, state, local or foreign governmental body or regulatory authority has
made any finding or determination relating to the fairness of an investment in
any of the Shares and that no Federal, state, local or foreign governmental body
or regulatory authority has recommended or endorsed, or will recommend or
endorse, any investment in any of the Shares. The Purchaser, in making the
decision to purchase the Shares, has relied upon independent investigation made
by it and has not relied on any information or representations made by third
parties.
(c) The Purchaser understands that the Shares are being offered and
sold to it in reliance on specific provisions of Federal and state securities
laws and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
the Purchaser set forth herein for purposes of qualifying for exemptions from
registration under the Securities Act, and applicable state securities laws.
(d) The Purchaser is not a "U.S. Person" (as defined in Rule 902(k)
of Regulation S) and is not acquiring any of the Shares for the account or
benefit of any U.S. Person.
(e) The Shares were not offered to the Purchaser in the United States
and at the time of execution of this Agreement and the time of any offer to the
Purchaser to purchase the Shares, the Purchaser was physically outside of the
"United States" (as defined in Rule 902(l) of Regulation S). The offer leading
to the sale evidenced hereby was made in an "offshore transaction" (as defined
in Rule 902(h) of Regulation S).
(f) The Purchaser is and will be acquiring the Shares for such
Purchaser's own account, and not with a view to any resale or distribution of
the Shares in whole or in part, in violation of the Securities Act or any
applicable securities laws.
(g) The offer and sale of the Shares is intended to be exempt from
registration under the Securities Act, by virtue of Section 4(2) and Regulation
S promulgated under the Securities Act. The Purchaser understands that the
Shares purchased hereunder have not been,
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and may never be, registered under the Securities Act and that none of the
Shares can be sold, transferred, assigned, pledged, subjected to any lien or
security interest or otherwise conveyed to a U.S. Person or for the account or
benefit of a U.S. Person unless in accordance with the provisions of Regulation
S, pursuant to registration of the Shares under the Securities Act and such
state and other securities laws as may be applicable or in the opinion of
counsel for the Company an exemption from registration under the Securities Act
is available (and then the Shares may be sold, transferred, assigned, pledged,
subjected to a lien or security interest or otherwise conveyed only in
compliance with such exemption and all applicable state and other securities
laws).
(h) The Purchaser (i) has such knowledge, experience and
sophistication in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Company and the Shares; (ii)
recognizes that such Purchaser's investment in the Company involves a high
degree of risk; and (iii) is capable of bearing the entire loss of its
investment in the Shares.
(i) The Purchaser agrees not to engage in hedging transactions with
regard to the Shares unless in compliance with the Securities Act.
(j) The Purchaser is neither a registered broker-dealer nor an
affiliate of a registered broker-dealer.
3. Representations, Warranties and Covenants of the Company. The Company
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represents and warrants to the Purchaser, and covenants for the benefit of the
Purchaser, as follows:
(a) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the state of Delaware, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to
register or qualify would not shave a Material Adverse Effect. For purposes of
this agreement, "Material Adverse Effect" shall mean any effect on the business,
results of operations, assets or financial condition of the Company that is
material and adverse to the Company and its subsidiaries, taken as a whole
and/or any condition, circumstance, or situation that would prohibit the Company
from entering into and performing any of its obligations under this Agreement in
any material respect.
(b) The Company has furnished the Purchaser with copies of the
Company's most recent Annual Report on Form 10-K for the fiscal year ended June
30, 2000 filed with the Commission (the "Public Document"), provided, that the
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Purchaser acknowledges that the Company intends to file an amendment to such
Public Document. The Public Document at the time of its filing did not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. As used herein,
"Commission
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Documents" means all reports, schedules, forms, statements and other documents
filed by the Company with the Commission pursuant to the reporting requirements
of the Exchange Act, including material filed pursuant to Section 13(a) or 15(d)
of the Exchange Act.
(c) The Shares have been duly authorized by all necessary corporate
action and, when paid for by the Purchaser and issued in accordance with the
terms hereof, the Shares shall be validly issued, will be fully paid and non-
assessable.
(d) Each of this Agreement and the Registration Rights Agreement
attached hereto as Exhibit A (the "Registration Rights Agreement") has been duly
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authorized, validly executed and delivered on behalf of the Company and is a
valid and binding agreement and obligation of the Company enforceable against
the Company in accordance with its terms, subject to limitations on enforcement
by general principles of equity and by bankruptcy or other laws affecting the
enforcement of creditors' rights generally, and the Company has full power and
authority to execute and deliver this Agreement and the other agreements and
documents contemplated hereby and to perform its obligations hereunder and
thereunder.
(e) The execution and delivery of this Agreement and the Registration
Rights Agreement, the issuance of any of the Shares and the consummation of the
transactions contemplated by this Agreement and the Registration Rights
Agreement by the Company, will not (i) conflict with or result in a breach of or
a default under any of the terms or provisions of, (A) the Company's certificate
of incorporation or by-laws, or (B) of any material provision of any indenture,
mortgage, deed of trust or other material agreement or instrument to which the
Company is a party or by which it or any of its material properties or assets is
bound, (ii) result in a violation of any material provision of any law, statute,
rule, regulation, or any existing applicable decree, judgment or order by any
court, Federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company, or any of its material
properties or assets or (iii) result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or assets of the
Company or any of its subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may be bound
or to which any of their property or any of them is subject except in the case
of clauses (i)(B) or (iii) for any such conflicts, breaches, or defaults or any
liens, charges, or encumbrances which would not have a Material Adverse Effect.
(f) The sale and issuance of the Shares in accordance with the terms
and on the basis of the representations and warranties set forth in this
Agreement will be exempt from the registration requirements of the Securities
Act.
(g) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the Company
is required in connection with the valid execution and delivery of this
Agreement or the offer, sale or issuance of the Shares or the consummation of
any other transaction contemplated by this Agreement (other than any filings
which may be required to be made by the Company with the Securities and Exchange
Commission, or Nasdaq or pursuant to any state or "blue sky" securities laws
subsequent to the Closing, and, any registration statement which may be filed
pursuant to this Agreement).
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(h) There is no action, suit, claim or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending against
or affecting the Company, or any of its properties, which questions the validity
of the Agreement, the Registration Rights Agreement or the transactions
contemplated thereby or any action taken or to be take pursuant thereto. There
is no action, suit, claim or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending against or affecting the
Company, or any of its properties, which, if adversely determined, is reasonably
likely to result in a Material Adverse Effect.
(i) Subsequent to the dates as of which information is given in the
Public Document, except as contemplated herein, the Company has not incurred any
material liabilities or material obligations, direct or contingent, or entered
into any material transactions not in the ordinary course of business.
(j) The Company has sufficient title and ownership of all trademarks,
service marks, trade names, copyrights, patents, trade secrets and other
proprietary rights ("Intellectual Property") necessary for its business as
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now conducted and as proposed to be conducted as described in the Public
Document or the Commission Documents except for any of the foregoing, the
absence of which would not reasonably be likely to result in a Material Adverse
Effect and, to its knowledge without any conflict with or infringement of the
rights of others. Except as set forth in the Public Documents or the Commission
Documents, there are no material outstanding options, licenses or agreements of
any kind relating to the Intellectual Property, nor is the Company bound by or
party to any material options, licenses or agreements of any kind with respect
to the Intellectual Property of any other person or entity.
(k) The Company has complied and will comply with all applicable
federal and state securities laws in connection with the offer, issuance and
sale of the Shares hereunder. Neither the Company nor anyone acting on its
behalf, directly or indirectly, has or will sell, offer to sell or solicit
offers to buy any of the Shares, or similar securities to, or solicit offers
with respect thereto from, or enter into any preliminary conversations or
negotiations relating thereto with, any person, or has taken or will take any
action so as to bring the issuance and sale of any of the Shares under the
registration provisions of the Securities Act and any other applicable federal
and state securities laws. Neither the Company nor any of its affiliates, nor
any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising in connection with any of the Shares.
(l) Neither this Agreement or the Schedules hereto nor the
Registration Rights Agreement contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
herein or therein, in the light of the circumstances under which they were made
herein or therein, not misleading.
(m) The authorized capital stock of the Company and the shares
thereof issued and outstanding as of the date hereof are set forth on
Schedule 3(m) attached hereto. All of the outstanding shares of the Company's
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Common Stock have been duly and validly authorized, and
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are fully paid and non-assessable. Except as set forth in this Agreement, the
Public Documents the Commission Documents or on Schedule 3(m) attached hereto,
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as of the date hereof, no shares of Common Stock are entitled to preemptive
rights or registration rights and there are no outstanding options, warrants,
scrip, rights to subscribe to, call or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company. Furthermore, except as set forth in this Agreement, in the
Public Documents, the Commission Documents or on Schedule 3(m) as of the date
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hereof, there are no contracts, commitments, understandings, or arrangements by
which the Company is or may become bound to issue additional shares of the
capital stock of the Company or options, securities or rights convertible into
shares of capital stock of the Company. Except as disclosed in the Commission
Documents and except for customary transfer restrictions contained in agreements
entered into by the Company in order to sell restricted securities, as of the
date hereof, the Company is not a party to any agreement granting registration
rights to any person with respect to any of its equity or debt securities. The
Company is not a party to, and it has no knowledge of, any agreement restricting
the voting or transfer of any shares of the capital stock of the Company. The
offer and sale of all capital stock, convertible securities, rights, warrants,
or options of the Company issued prior to the Closing complied with all
applicable federal and state securities laws, and no stockholder has a right of
rescission or damages with respect thereto which is reasonably likely to have a
Material Adverse Effect. The Company has furnished or made available to the
Purchaser true and correct copies of the Company's Certificate of Incorporation
as in effect on the date hereof (the "Certificate"), and the Company's Bylaws
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as in effect on the date hereof (the "Bylaws").
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(n) In connection with the offer and sale of the Shares, no
distributor or any affiliates or any person acting on behalf of the Company or
any affiliate of the Company or any distributor has engaged in any "directed
selling efforts" (as such term is defined in Rule 902(c) of Regulation S) nor
conducted any general solicitation relating to the offer to persons residing
within the United States or to "U.S. Persons" (as such term is defined in Rule
902(o) of Regulation S).
(o) Prior to the effectiveness of the Registration Statement (as
defined in the Registration Rights Agreement), the Company will use its best
efforts to list the Shares for trading on the Nasdaq National Market system or
any relevant market or system, if applicable, and will comply in all material
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of the NASD and NASDAQ system or any relevant market or system.
(p) The Company may not issue a press release or otherwise make a
public statement or announcement with respect to the transaction contemplated
hereby prior to the Closing Date. In the event that the Company is required by
law or regulations to issue a press release or otherwise make a public statement
or announcement with respect to this Agreement after the Closing Date, the
Company shall consult with the Purchaser on the form and substance of such press
release or other disclosure.
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4. Conditions Precedent: The obligations hereunder of both the Company
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and the Purchaser to enter into this Agreement is subject to their satisfaction
or waiver, at or before the Closing, of each of the conditions set forth below.
These conditions are for the Company's and the Purchaser's sole benefit
respectively, and they may waive their own rights at any time in their sole
discretion.
(a) The parties shall have executed and delivered this Agreement and
the Registration Rights Agreement.
(b) The Company shall have delivered certificates evidencing the
Shares to the Purchaser.
(c) Upon receipt of the certificates evidencing the Shares, the
Purchaser shall have delivered to the Company immediately available funds as
payment in full of the Purchase Price for the Shares.
(d) The Purchaser shall have received a legal opinion in
substantially the form annexed hereto as Exhibit A.
5. Legends. Unless otherwise provided below, each certificate
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representing the Shares shall be stamped or otherwise imprinted with a legend
substantially in the following form (the "Legend"):
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS IN ACCORDANCE WITH REGULATION S OF THE SECURITIES ACT,
REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR MYRIAD GENETICS INC. (THE "COMPANY") SHALL HAVE
RECEIVED AN OPINION, IN FORM, SCOPE AND SUBSTANCE REASONABLY
ACCEPTABLE TO THE COMPANY, OF COUNSEL WHO IS REASONABLY ACCEPTABLE TO
THE COMPANY THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES
ACT AND UNDER THE PROVISIONS OF APPLICABLE FEDERAL AND STATE
SECURITIES LAWS IS NOT REQUIRED.
HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY
NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT."
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6. Fees and Expenses. Except as otherwise set forth in this Agreement and
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the Registration Rights Agreement, each of the Company and the Purchaser shall
pay its respective fees and expenses related to the transactions contemplated by
this Agreement and the Registration Rights Agreement.
7. Indemnification.
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(a) The Company hereby agrees to indemnify and hold harmless the
Purchaser and its officers, directors, shareholders, employees, agents and
attorneys against any and all losses, claims, damages, liabilities and
reasonable expenses incurred by each such person in connection with defending or
investigating any such claims or liabilities, whether or not resulting in any
liability to such person, to which any such indemnified party may become
subject, insofar as such losses, claims, demands, liabilities and expenses arise
out of or are based upon any breach of any representation or warranty made by
the Company in this Agreement.
(b) The Purchaser hereby agrees to indemnify and hold harmless the
Company and its officers, directors, shareholders, employees, agents and
attorneys against any and all losses, claims, damages, liabilities and expenses
incurred by each such person in connection with defending or investigating any
such claims or liabilities, whether or not resulting in any liability to such
person, to which any such indemnified party may become subject under the
Securities Act, or under any other statute, at common law or otherwise, insofar
as such losses, claims, demands, liabilities and expenses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact made by the Purchaser, (ii) any omission or alleged omission of a material
fact with respect to the Purchaser or (iii) any breach of any representation,
warranty or agreement made by the Purchaser in this Agreement.
8. Governing Law; Consent to Jurisdiction. This Agreement shall be
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governed by and interpreted in accordance with the laws of the State of New York
without giving effect to the rules governing the conflicts of laws. Each of the
parties consents to the exclusive jurisdiction of the Federal courts whose
districts encompass any part of the County of New York located in the City of
New York in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any such proceeding
in such jurisdictions. Each party waives its right to a trial by jury. Each
party to this Agreement irrevocably consents to the service of process in any
such proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to such party at its address set forth herein or its
agent. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law.
9. Notices. All notices and other communications provided for or permitted
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hereunder shall be made in writing by hand delivery, express overnight courier,
registered first class mail, or telecopier, initially to the address set forth
below, and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section.
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(a) if to the Company:
Myriad Genetics Inc.
000 Xxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attn: President
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) if to the Purchaser:
Acqua Wellington North American Equities Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Ltd.
Xxxxxxxx Xxxxxxxx Centre
East Bay Street, P. O. Box SS-6238
Nassau, Bahamas
Attention: Xxxxxxx X.X. Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; or when actually received or refused if sent by
other means.
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10. Entire Agreement. This Agreement and the Registration Rights Agreement
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constitute the entire understanding and agreement of the parties with respect to
the subject matter hereof and supersedes all prior and/or contemporaneous oral
or written proposals or agreements relating thereto all of which are merged
herein. This Agreement may not be amended or any provision hereof waived in
whole or in part, except by a written amendment signed by both of the parties.
11. Counterparts. This Agreement may be executed by facsimile signature
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and in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[end of page]
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IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written above.
MYRIAD GENETICS INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President and C.E.O.
ACQUA WELLINGTON NORTH AMERICAN EQUITIES FUND,
LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Secretary
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EXHIBIT A TO THE
COMMON STOCK PURCHASE AGREEMENT
OPINION OF COUNSEL
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has full power and
authority (corporate and other) to conduct its business as presently conducted
by it and to enter into and perform the Purchase Agreement and the Registration
Rights Agreement and to carryout the transactions contemplated thereby. There
are no jurisdictions in which, to our knowledge, the nature of the Company's
properties or the transaction of its business, makes the Company's qualification
to do business as a foreign corporation necessary, except for those
jurisdictions in which the Company is qualified, to our knowledge, to do
business as a foreign corporation or those jurisdictions in which failure to be
so qualified would not have a Material Adverse Effect.
2. The execution, delivery and performance by the Company of the
Purchase Agreement and the Registration Rights Agreement have been duly
authorized by all necessary corporate action of the Company, and each of the
Purchase Agreement and the Registration Rights Agreement has been duly executed
and delivered by the Company. The Purchase Agreement and the Registration Rights
Agreement each constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
3. The issuance, sale and delivery of the Shares in accordance with
the Purchase Agreement have been duly authorized by all necessary corporate
action on the part of the Company and, when delivered against payment in full as
provided in the Purchase Agreement, will be validly issued, fully paid and
nonassessable. To our knowledge, the Shares are free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the
Company. Neither the issuance, sale or delivery of the Shares is subject to any
preemptive right of stockholders of the Company arising under law or the
Certificate of Incorporation or By-laws of the Company, each as amended to date.
4. The execution and delivery of the Purchase Agreement and the
Registration Rights Agreement and the performance by the Company of its
obligations thereunder, do not (A) violate any provision of the Certificate of
Incorporation or By-laws of the Company, each as amended to date, (B) violate,
conflict with or constitute a default under any material contract, commitment,
trust or agreement of any kind known to us to which the Company is a party or by
which it is bound or (C) violate the Delaware General Corporation Law or any
U.S. federal statute, regulation or rule or, to our knowledge, any judgment,
decree, writ, order or injunction of any arbitrator, court or governmental
authority binding upon the Company.
5. To our knowledge, there is no action, suit, proceeding or
arbitration pending against or threatened against or affecting the Company
before any court or arbitrator or
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any governmental body, agency or official which, if adversely determined, is
reasonably likely to result in a Material Adverse Effect, or which in any manner
questions the validity of the Purchase Agreement and the issuance of the Shares
pursuant thereto, or the Registration Rights Agreement
6. To our knowledge, all authorizations, consents, approvals and
clearances of all governmental agencies and authorities and of third parties
required in order to permit the issuance by the Company of the Shares pursuant
to the Purchase Agreement (other than any filings which may be required to be
made by the Company with the Commission, or Nasdaq subsequent to the Closing,
and, any registration statement which may be filed pursuant to the Purchase
Agreement or the Registration Rights Agreement) have been obtained.
7. Subject to the truth and accuracy of the representations and
warranties of the Purchaser set forth in Section 2 of the Purchase Agreement,
the offer, issuance and sale of the Shares pursuant to the Purchase Agreement
will be exempt from registration under the Securities Act of 1933, as amended,
pursuant to Rule 4(2) and Regulation S promulgated thereunder.
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