EXHIBIT 2.2
FORM OF
AFFILIATE'S AGREEMENT
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_____ __, 1997
Ansan Pharmaceuticals, Inc.
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
1. Reference is made to the Agreement and Plan of Reorganization and
Merger dated as of July __, 1997 (the "Merger Agreement"), made and entered into
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by and among Ansan Pharmaceuticals, Inc., a Delaware corporation ("Ansan") and
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Discovery Laboratories, Inc., a Delaware corporation ("Discovery"). The Merger
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Agreement provides for the merger of Discovery with and into Ansan (the
"Merger") in a transaction in which shares of Discovery capital stock will be
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exchanged and converted into shares of Ansan capital stock.
2. I have been informed that the Ansan Preferred Stock (the "Ansan
Preferred") and the Ansan Common Stock (the "Ansan Common") which I may acquire
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in connection with the Merger will be registered under the Securities Act of
1933, as amended (the "Securities Act"); that the Merger constitutes a
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transaction covered by Rule 145 of the Rules and Regulations of the Securities
and Exchange Commission (the "Commission") under the Securities Act; that as of
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the date hereof I may be deemed to be an "affiliate" of Discovery within the
meaning of Rule 145; and that the shares of Ansan Preferred and Ansan Common
which I will acquire in connection with the Merger (or the shares of Ansan
Common issued on conversion of the Ansan Preferred) may only be disposed of in
conformity with the provisions of Rule 145 or otherwise in conformity with the
Securities Act and the other limitations described herein.
Ansan Pharmaceuticals
___________, 1997 Page 2
3. I represent, warrant and agree as follows:
(a) I have full power to execute this letter and to make the
representations, warranties and agreements herein and to perform my obligations
hereunder.
(b) Appendix A attached hereto sets forth all shares of Discovery
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capital stock owned by me, including all options or other rights to acquire
Discovery capital stock (including any shares of preferred stock) of Discovery
as to which I have sole or shared voting or investment power (the "Discovery
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Shares").
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(c) I will not sell, transfer or dispose of any shares of Ansan
Preferred or Ansan Common that I may acquire in connection with the Merger in
exchange for the Discovery Shares owned by me, or any securities which may be
paid as a dividend or otherwise distributed thereon or with respect thereto or
issued or delivered in exchange or substitution therefor or upon conversion
thereof (all such shares and other securities being herein sometimes
collectively referred to as "Restricted Securities"), or any option, right or
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other interest with respect to any Restricted Securities, unless such sale,
transfer or disposition is effected as provided in Section 5 hereof.
4. By countersigning below, Ansan agrees that it will: (i) until the
first anniversary of the effective time of the Merger, as provided in the Merger
Agreement (the "Effective Time"), file all reports required to be filed under
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the Exchange Act of 1934, as amended (the "Exchange Act"), within the time
period permitted; and (ii) after the first anniversary of the Effective Time,
file all reports and data with the Commission necessary to permit me to sell
Restricted Securities pursuant to and otherwise in conformity with Rule 145(d)
under the Securities Act. I understand that Ansan is under no obligation to
register the sale, transfer, or other disposition of any Restricted Securities
by or on behalf of me or to take any other action necessary in order to make
compliance with an exception from registration available to me, other than as
set forth herein and other than pursuant to any rights to registration that I
may have under any agreement with Discovery, which agreements will be assumed by
Ansan in connection with the Merger.
5. I understand that the provisions of Rule 145 restrict public resales
of restricted securities. If in fact the undersigned were an affiliate under
the Securities Act
Ansan Pharmaceuticals
___________, 1997 Page 3
for purposes of Rule 145, I understand that I may publicly sell my Restricted
Securities as follows:
(a) Pursuant to Rule 145(d)(1):
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I understand Rule 145(d)(1) permits public resales of Restricted
Securities only (a) while Ansan meets the public information requirements of
Rule 144(c), (b) in broker's transactions within the meaning of Section 4(4) of
the Securities Act or in a "market makers" transaction as defined by reference
to Section 3(a)(38) of the Exchange Act and otherwise in compliance with Rule
144(f), and (c) where the aggregate number of Restricted Securities sold at any
time together with all sales of Ansan Common Stock sold for my account during
the preceding three-month period does not exceed the greater of: (i) one
percent of the Ansan Common Stock outstanding; or (ii) the average weekly volume
of trading in Ansan Common Stock on all national securities exchanges and/or
reported through the automated quotation system of a registered securities
association, during the four calendar week period preceding any such sale, or
(iii) the average weekly volume of trading in Ansan Common Stock reported
through the consolidated transaction reporting system contemplated by Rule
11Aa3-1 of the Exchange Act during the four week period specified in clause (ii)
above.
(b) Pursuant to Rule 145(d)(2):
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I understand I may make unrestricted resales of Restricted
Securities pursuant to Rule 145(d)(2) if I have beneficially owned the
Restricted Securities for at least one year as determined in accordance with
Rule 144(d) and am not an affiliate of Ansan and Ansan meets the public
information requirements of Rule 144(c).
(c) Pursuant to Rule 145(d)(3):
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I understand I may make unrestricted resales of Restricted
Securities pursuant to Rule 145(d)(3) if I have beneficially owned the
Restricted Securities for at least two years as determined in accordance with
Rule 144(d) and am not, and have not been for at least three months, an
affiliate of Ansan.
By its countersignature below Ansan acknowledges that the provisions of
Section 1(c) of this Affiliate's Agreement will be satisfied, as to any sale by
me of Restricted
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___________, 1997 Page 4
Securities: (i) in a sale that has been registered under the Securities Act,
(ii) pursuant to Rule 145(d) under the Securities Act while Ansan meets the
public information requirements of Rule 144(c), by a broker's letter or market
maker's letter with respect to that sale stating that each of the above-
described requirements of Rule 145(d)(1) has been met or is inapplicable by
virtue of Rule 145(d)(2) or Rule 145(d)(3); or (iii) in a transaction otherwise
exempt from the Securities Act; provided, however, that if counsel for Ansan
reasonably believes that the provisions of Rule 145(d) or the Securities Act
have not been complied with in respect of such sale by me, and if requested by
Ansan in connection with a proposed disposition other than pursuant to a
registered offering, I will furnish to Ansan a copy of a "no action" letter or
other communication from the staff of the SEC, or an opinion of counsel in form
and substance reasonably satisfactory to Ansan and its counsel, to the effect
that all of the applicable requirements of Rule 145(d) or the Securities Act
have been complied with.
6. I also understand that stop transfer instructions will be given to
Ansan's transfer agent with respect to certificates evidencing the Restricted
Securities and that there will be placed on the certificates evidencing the
Restricted Securities a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN AN AGREEMENT BETWEEN THE REGISTERED HOLDER
THEREOF AND ANSAN PHARMACEUTICALS, INC. THE AGREEMENT PROVIDES THAT
THE SHARES MAY NOT BE SOLD, TRANSFERRED OR DISPOSED OF UNLESS SUCH
SALE, TRANSFER OR DISPOSITION (a) HAS BEEN REGISTERED FOR RESALE UNDER
THE SECURITIES ACT OF 1933 (THE "ACT"), OR (b) MEETS THE REQUIREMENTS
OF RULE 145 UNDER THE ACT , OR (c) IS OTHERWISE EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. A COPY OF SUCH AGREEMENT IS ON
FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
By countersigning below Ansan agrees that such stop transfer instruction
and legend will be removed promptly if it has received an opinion of counsel
reasonably satisfactory to it, or a no-action letter of the staff of the
Securities and Exchange
Ansan Pharmaceuticals
___________, 1997 Page 5
Commission to the effect that the restrictions of Rule 145 are inapplicable to
the Restricted Securities or, upon request by the undersigned, after the second
anniversary of the Effective Time; provided, however, that Ansan reserves the
right to impose stop transfer instructions and legends on certificates with
respect to shares held by affiliates of Ansan to insure compliance with Rule 144
under the Securities Act in the manner that Ansan generally takes such measures
with respect to shares held by its affiliates.
7. Once countersigned by Ansan, this letter shall be binding upon and
enforceable against (i) me and my administrators, executors, representatives,
heirs, legatees and devisees and any pledgee holding Restricted Securities as
collateral, and (ii) any successors to or assignees of Ansan.
8. I have carefully read this letter and have discussed its requirements
and other applicable limitations upon the sale, transfer, or other disposition
of the Restricted Securities and other Ansan securities owned by me with my
counsel or counsel to Discovery to the extent I felt necessary.
9. Execution of this letter shall not be deemed an admission on the part
of the undersigned that the undersigned is an "affiliate" of Ansan or Discovery
nor shall such execution be deemed to constitute a waiver of any rights of the
undersigned to object to any claim that it is an "affiliate" on or after the
date hereof.
10. This letter agreement shall be governed by and construed in accordance
with the laws of the State of Delaware as applied to agreements entered into and
performed by Delaware residents and entirely to be performed within Delaware.
Very truly yours,
____________________________________
(Print name of stockholder)
By: ________________________________
Title: _____________________________
Ansan Pharmaceuticals
___________, 1997 Page 6
By signing below, Ansan represents and warrants that it has full power to
execute this letter and to make the representations, warranties and agreements
herein and to perform its obligations hereunder.
ANSAN PHARMACEUTICALS, INC.
By: ______________________________
Xxxxxxx Xxxxxxx
Chief Executive Officer
APPENDIX A
TO
AFFILIATE'S AGREEMENT
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Common Stock:
Preferred Stock:
Options and other Rights:
